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A DIGEST 



OF THE 



CRIMIl^AL LAW 



OF CANADA 



(CRIMES AND PUNISHMENTS) 



FOUNDED BY TBUMISSION ON 



SIR JAMES FITZJAMES STEPHEN'S DIGEST OF THE 

CRIMINAL LAW. 



BY 

GEOHaE WHEELOCK BURBIDaE, A.B., D.C.L. 

JUDGE OP THE BXCHEQUBR COURT OP CANADA. 



r - :^:; Toronto : - - : 

CARSWELL & CO., LAW PUBLISHERS, 

1890. 



?204- 



Entered, according to Act of the Parliament of Canada, in the year one thousand 
eight hundred and ninety, by George Whoelock Burbidge, at the Department of Agri- 
culture. 



MONTREAL: 

PRINTED BY THE GAZBTTB PRINTING COMPANY. 
1890. 



PREFACE. 



This Digest is intended to be a statement of that part 
of the Criminal Law of Canada which relates to the 
definition of crimes and of the punishments prescribed 
therefor, as it stood on September 1st, 1889. 

The work is, by the kind permission of the author, 
founded on Sir James Fitzjames Stephen's Digest of the 
Criminal Law of England. The portions hereof that 
are taken from the latter work are enclosed in brackets 
[ ], and to enable the reader to distinguish such portions 
the more readily, and without turning backwards the 
leaf to which his attention is directed, the continuation 
of an extract beyond a page is indicated by the insertion 
of a bracket at the beginning of the page following. 

The index and the tables of cases and of the statutes 
have been prepared by Charles H. Masters, Esquire, 
Barrister-at-Law, assistant reporter of the Supreme Court 
of Canada, to whom I am also greatly indebted for 
assistance in the preparation of the Digest, and for 
reading the proofs and verifying the references to cases 
and authorities. 

Ottawa, January 2nd, 1890. 



TABLE OF CASES CITED. 



A. 

PAGE. 

Abbott, n.v 348 

Abraham'a Case 311 

Abrahams, R. v 343 

Adams, U. v 2G5 

Addis, R. V 303 

Adey, R. 7J 526,527 

Aickles'Case 389 

.^ key's Case 220 

Allen, R.t' 204,248,255 

Allen and Others, R. v. 218, 223, 

513, 522, 523 

Alinon, R, V 2G5, 266 

Anderson, in re 220 

, R. ?' 222 

Andrews r. Wilson .... 264 

Antrobus, R. t» 112 

Appleby, R. t' 10 

?•. Franklin . . . 149 

Archer, H. v. . . . ■ . . 35 

Ardley, R. r 346 

Armory v. Dalamirie . . . 281 
Armstrong, U. v. . . . . 372 

Arscott, R. (' 188 

V. Lilley 188 

Asher v. Calcraft 160 

Ashwell, R.V 296, 297 

Aspinall, R. v 370 

Atalaya, The 95 

Atkinson, R. v 35 

Att.-Gen. of Hongkong v. Kwok- 

a-sing 101 

V. Baillie .... 12 

V. Ranee tSurnonioye 

Possee 11 

V. Stewart .... 10 

t). Terry 173 



PAGE. 

Att.-Gen. v. Windsor ... 2! 6 

Avery, R. v 298 

Austin, R. P. 472 

B. 

Badger, R. » Ill 

Bail, R.V 391 

Balls, R.V 298 

Balme, R. v 115 

Barnard, R. v 344 

Barnes, R. v 11, 180 

V. Ward 186 

Barnett, R. v 241, 376 

Barratt, R. v. 250 

Barrett, R. v 174 

Barronet, ex parte .... 39 

, R.V. . . . . 200, 221 

Barrow, R. v 248, 249 

Bartlielemy, R. v 221 

Bassett, R. v 187 

Bateman, R. v 388 

Battersby v. Odell .... 11 

Batty, R.V 307 

Buzeley's Case- . . . 279, 311 

Beatson v. Skene 269 

Beaumont, R. i; 309 

Belch r. Arnott 196 

Bembridge, R. v. . • 110, 112, 152 
Bennett, R. v. . . . . 115, 211 

Bennett's Case 204 

Bentinck v. VVillink .... 10 
Berriman, R. i;. . . . 160, 228 

Berihiaume, R. v 297 

Bertles, R. r 343 

Bertram v. Bonham ... 73 
Best, R. V. ...... . 150 



VI. 



TABLE OF CASES CITED, 



I'AGK. 

Letts, R. r 173 

Billiii^'lmm, K. v 200 

Bisliop, R. r 41 

Biswtdl, R. r 259 

Blackstone, R. v 3J)2 

Blailos V. Hifrirs . . . 287, 291 
Blankard r. Galdy . . . . 0, 10 

Rlenkinsop, R. v 1588 

Boardman, R. i- 385 

Boden, R. v 290 

Borron, H. v 110 

Boult, R. ?• 417 

Boulton, R. !• 285 

Bower, R. r 114 

Boyall, R. r 115 

Bradford, R. v 464 

Bradlaiigh, R. v. . . . 163, 166 

Bradehaw, B,. v 449 

Brady, R. ?> 343 

Brain, R. t- 209 

Brawn and Webb, R. v. . . 255 

Brice, R. r 185 

Bridges, R. r 22 

Bridgewater, The .... 196 

Brien, R. r 343 

Brierley, R. r 254 

Brittain, R. v 185 

Brodribb, H. v 69 

Bromage v. Prosser .... 267 

Brooks, R. V .35 

Brown, R. v. . 226, 228, 230, 416 

V. Harding .... 13 

r. Mallett .... 186 

Brownell, R. v 464 

Bryan, R. i> 346 

Bryans, R. « 449 

Brydges, ex parte . . . 203, 236 

Bubb, R.v 206 

Buchanan, R. r 115 

Buck, R.v 115 

Buckmaster, 11. v 295 

Buckner's Case 220 

Bullock, R.V 467 

V. Dodds .... 22 

Bunce, R.v 295 



I'AOB. 

Buncombe, R. r 35 

Biinn, R. r 51 

lUinting, R. r 51, 117 

Burdell, R.v 11 

Bunlett, R. v. . . . 93, 265, 266 
Burgess, R. v. . 149, 224, 227, 299 

Burgon, R. v 348 

I'.urns, R. t' 69, 92 

V. Nowell 39 

Burrell, R.v 257 

]iurt r. Burt .... 253, 255 

Burton, R.v 304, 308 

Butterworlh, R. v 298 

Byrne v. Boadle 204 

Byron's (Lord) Case . 220, 221 

C. 

Cabbage,=R. v 289 

Q».(\hy , vx parte 388 

Callahan, R.v 307 

Campbell, R. r. . , . . . 343 

V. Hall 10 

Camplin, R.v 250 

Capital and Counties Bank v. 

Henty 263 

Carlile, R.v 274 

Carlisle's Case 370 

Carlisle, R. v 115 

Carr, R. v 211, 263, 307 

, r.'Fire Assur. Assoc. . 10 

,r. Hood 270 

Carvill v. McLeod .... 264 

Cartwright v. Green . 279, 292, 296, 

297, 300, 532 

Cary'sCase ,223 

Case, R.V 241 

Castlehaven's (Lord) Case . 249 

Castro, R.v. . 27 

Caswell, R.r 332 

Chadwick, R. V. . . . 255,389 

Chambers, R. v 400 

Chandler, R. v. 261 

Chapman, R.v. 312 

Chapman's Case ..... 136 



TABLE OF CASES CITED. 



vii 



PACE. 

Charost, R. v 305 

Charlotto Smith, R. v. . . . L'0(i 

Cheafor, \i. v 287 

Cheeseinan's Case .... 52 

Child, R. V 71, 451 

C'liipchase'a Case 310 

('liouinard, R. v 374 

Cliri8tian, R. v 372 

Clark V. Molyneux .... 268 

Clarke's Case 288 

Clarke, R. v. ... 188, 248, 249 

V. Donnelly .... 182 

Clarence, 11. v 231, 243 

Clement, R. v 51 

Closs, R. V 371, 392 

Coggs V. Bernard 283 

Cokely, R. r 73 

Coley, li.v 305 

Collin's Case 53 

Collins, R. 1) 92, 389 

Colonial Bank v. Warden . . 10 
Coney and Others, R. v. . 43, 200 
Connick v. Wilson .... 264 

Connolly, R. i; 250 

Cooke, R. V 280, 385 

Cooper, R. v. . . . 45, 265, 374 
Corby v. MacDaniel ... 11, 182 
Corcoran, R. v. ..... 70 

Corey, 11. v 343 

Cornellier, R. v 124 

Cornwall r. R 246 

Cory, R. v 287 

Coslet'sCase 282 

Costin V. Chappell .... 12 

Cott6, II. V 420 

Cox, R. V 248 

V. Lee 265 

Coxhead v. Richards . . . 269 

Craig, R. r 390 

Cramp, H. v 252 

Crawley, R.t; 184 

Crawshaw, R. » 181 

Cronan, R. v 241 

Cronin, R. ■». 449 

Cronmire, R. i" 372 



I'AOB. 

Cronyn v. Griflith .... 11 
Cronyn v. Widder ... 11, 182 

Cruse, H. r 36, 44 

Cnitchley, R. V 36 

(Hiddy, R. v 221 

CiiUuni, R. V 307,309 

Cummings, R. v. . . . 311,339 

Cunningham, R. r 401 

('urgerwen, R. v 254 

Curry r. Walter 273 

Curtley, R. V 43 

Cutler V. Dixon 272 

D. 

Daggett, R. V 160 

Dale, R. i; 116 

Daly, R. r 188 

Danger, R. r 341 

Dant, R. V 207 

Davenport, R. v 294 

Davie's Case 292 

Davies, R. v 296, 297 

D'Avigdor, R. r 149 

Davis, R. V 115, 343, 527 

Davison v. Duncan .... 272 
Dawes v. Painter .... 10 
Dawkins v. Lord Paulet . . 273 

V. Lord Rokeby 272, 273 

Dawson, R. v 101 

Day, R. « 241 

Deasy, R. v 55 

De Banks, R. v 297 

Debaun, ex parte . . . 392, 401 

Debay, R. V. 254 

De Berenger R. v 369 

Dee, R. r 249 

D'Eon, R. V 95 

Delaval, R. v. . . . . 162, 167 
Delegal v. Highley .... 274 
Desmond and Others, R. v. 218, 513 
Despatie, ex parte .... 1 88 

Dessauer, R. v. 343 

Dewitt, R. V 7 

Dibdin-y. Bostock .... 270 



Vlll 



TABLE OF CASES CITED. 



I'AOM. 

Dicks, K. r IJ.") 

I)illiii;jluim r. Wilson ... 10 

Dillon, H. V {), 180 

Dixon, K.r 184, ;$71 

V. Holl 202 

Diiunor. M(;Kenny .... 12 
Doa.ls, li. V 182 



Doe (1. 



l.T 
10 
21 



21 



Allen V. Murray . . 

Anderson r. Todd . 

Gilloapio r. VVixon . 

Grifliths v. Pritoh- 

ard 

Ilaninf^ton v. Mc- 

Fadden . . 10, 12, 13 

Sheldon v. Itanisay 21 

Dogherty, R. v 458 

Doherty, H. v 35 

Dolan, li. r 381 

Donellan's Case 211 

Doran r. Chambers .... 11 

Doty, M.I' 133 

Downea, 11. 7< 201 

Downie, R. v 51 

Drin},', R. v 381 

l^nlmc, ex parte 240 

Dud ley and Stephens, 11. v. . 37 

Dnll'ey's Case 45 

Dullicld, R. V 152 

Dugal, R. V 214 

Dui^'dale, R. v 52 

Duniais v. Hall . . . . , 471 

Duncan v. Thwaites. . . . 274 

Dundas Election Case ... 11 

Dunlop, R. V 184, 390 

Dunn, II. V 390 

Dunning, R. r. . . . • . 245 

Dwyer, R. ?- 254 



E. 



Eagleton, K v 52, 371 

Eastalls Case 294 

Eastwood V. McKenzie . . 21 

Edwards, R. v 292 

Eggington, R. v. 292 



I'AdH 

Eirre, R. r 102 

Elliott's Case .... 103, .".90 

Ellis, U. V 102 

Elsion, H. V 72 

ICminens, v. Pottle .... 205 

Eno, iri re 392 

Enoch, R. « 209 

Ensor, li.v 263 

Errington's Case 217 

Ksmonde, R. v 50 

Evans's ( 'ase 345 

Evans. R. r. . . . 213, 342, 400 

Ewing, 11. V 295 

F. 

Falkingham, R. r 202 

Falkland Islands Co. r. R. . 10 

Fallon, 11. r 49 

Faneuf, U. v 196 

Fanning, H. v 255 

F'arrow, R. r 252 

Foarraan, R. v 334 

F'eatherstone, R. v 298 

Fellowes, R. v 51 

Fennoty, R. v 218 

Fenton, R. ?- 219 

Ferens, v. O'Brien .... 285 

Ferrall, R. v 116 

Ferrer's (Sir H.) Case 220, 525, 527 

Ferris v. Irwin 305 

Fick, R. r 249 

Firth. R. v 285 

Fi.-her, R. r 220 

Fitch, R. r 298, 401 

Flattery, R. v 248, 249 

Fletcher, R. v 213, 377 

■ (C), R. V 250 

(R), R. V. . . 248, 250 

Flint, R.v 188 

Flowers, R.v 296 

Fontaine, R. v 254 

Foott r. Bullock . . . . _. 11 
Forbes r. Cochrane .... 9 
Ford V. Wiley 477 



TABLE OF CASES CITED. 



ix 



I'A(!K. 

Foster, R.V 34(i 

V. l-owier V2 

Fonlkes, IL r :iO(5 

Fournier, It. v 1581 

Fox, K. V 129,171 

Francis, \l, v -49 

Fray 'h Case 521 

Freeman ?'. Fairlie .... 10 

Frbncli. R. t' 400 

Fret well, K. r 45, 224 

Friend's ( 'aao 261 

Fulton r. James 180 

a 

Gagnon, K. r 133 

Gale, 11. r 309 

Gallajiiier, R. v 55 

Gardner, R. r 302, 348 

?•. Mansbridge . . 476 

(jlarrott, R. r 302, 347 

?'. Roberts . . .11,150 

Gatber(;ole, R. r. . . . 264, 205 

(iaylor, \l. v 225 

Geacb, R. r 385 

Gemmell, R. !• 343 

Geor<ro, R. r 241 

Gibbon, R. r 135 

Gibbons, R. r 40 

Gibson, R.r 133,481 

Gilbert r. Sayre 13 

Giles, R.r 345 

Glass, R. r 312, 33!) 

Glover, R. v J'.OO 

Glyde, R. i; 300 

Good body, R. r 307 

Goodman, R. r 53, 452 

Gordon, \\. v 346 

(Lord G.). R. v. . . 95 

Gotley, R. r 150 

Gould, inrp 391 

V. Cowan 297 

Graham, R. r. . r i . . .69 
Gray, R. r. . . ... . • 226 

Green, R. f 204 



PAOK. 

^jireenacre, R. v 225 

(ireenwood, R. r. . . 214,449 

Gregory, R. v 48, 51 

Grey (Lord), R. i- 107 

Grilliths, R. r 388 

(Jro()ml)ridge, R. r 249 

(Jrove, R. r 312 

(iuelder, R. ?■ 312 

Gumbes's Case 12 

Gurneis' Caf-e 135 

H. 

Iladfiold, R. 1). . . . 389,464 

Hainos, R.r 213 

Hale, R. r 254 

Hall, in re 391 

, R. r 39, 290, 305 

r. Carty .... 264, 391 

Hamilton r. Bone 476 

Hands, li.v 293 

Hardy, \l. v 464 

Harmer, R. r 240 

Harper, R.r 400 

Hurrinjij v. Walrond . . . 164 
Harris, R. r. . . . 115, 163, 417 
Harrison v. Bush .... 268 

V. Spencer .... 10 

Harrison's Case 298 

Hart, II. V 388 

Harvey r. Farnie 254 

, R. r. . . . 93,294,440 

Hassall, R. r 283, ;502 

Hastings, R. r 104 

Has well, R. v 143 

Hatton's Case 1 

Hawkeswood's Case . . . 390 

Hawkins, R. f 310 

Haynes, R. t' 371 

Hayward, R. r 223 

Hazelton, R. 1' 345 

Henderson v. Broomhead . . 272 

Henkers, R. r 258 

Hennah, R. r 252 

Hennessey, R. v.. . . 310, 340 



TABLE OF OASES OITED. 



PAGE. 

Henson, R. v 184 

Henwood v. Harrison . . . 270 

Hermann, R. t' 437 

Hesketh r. Ward 10 

Hespeler v. Shaw ItiO 

Heven, E. i; 3H9 

Hil.bert, R. -y 259 

Hicklin, R. ?' 164 

Hickson, R. t- 2G7 

Higgins, R. t' 51 

Hill, R. V 340, 380 

Hillman, B. v 252 

Hincks, R. f 420 

Hoarer. Silverlock .... 273 

Hoatson, R. r 385 

Hodgkiss, B..V 136 

Hodgson, R. v. . . 45, 312, 380 

Hogan, R. V 261 

Hogg, R. V 125, 129 

Hoke, mre 392 

Holbrook, R. i' 266 

Holland, R. v 213 

Hollis, R. t' 294 

Holloway, R. r. . . . 289,21)0 

Holmes, R. v 163, 184 

Hook, R.v 206 

Hopkins, R.v 259 

Hopley, R. V 196, 520 

Horseman, R. v. . . . 290, 321 

Horton, R.v 40 

Howarth, R. r 160 

Hudson, R.v 349 

Huggett's Case 220, 525, 526, 527 

Huggins, R. 1' 196 

Hughes, R. V. . . 35, 48, 134, 204, 

218, 307, 467 

Hughes's Case 292 

Hunt, R. V 231, 308 

Hunter v. Sharpe 269 

Huppel, R. V 342 

Hynes, R. v 372 

"■ :- ,1.:,.; 

Ingram's Case 131 



Isaacs, R. v. 



PAGE. 

. 252 



Jackson, R. v. . Ill, 248, 249. 345 
James, R. v. ... 71, 113,385 

v. McLean 13 

Jamieson, R. v 182 

Jarrard, in re 391 

Jarvis, R. v 184 

Jofferys v. Boosey .... 152 

Jenkins r. Cook 113 

r. Jones 138 

Jenks tJ. Turpin 174 

Jenner v. A'Becket .... 270 

Jennison, R.v 346 

Jenson, R.v 307 

Jessop, R.v 224, 345 

John v.R 51. 242 

Johnson, R. v 315 

Jones, R. v. 104, 112, 115, 185, 254, 

289, 329 

Jones' Case llt>, 390 

Jones (Lloyd), R. v 312 

(Valentine), R.v. . . 112 

Joyce, R. v 401 

Judd, R V 265 

K. 

Kavanagh v. Phelan ... 10 

Kay. R. t' 280 

Kaylor, R. V 257 

Kelly, R.V 42, 43, 70 

V. Jonps 12 

Kennedy v. Lyell 138 

Kennett, R.v. 112 

Kenrick R.v 370 

Keyn, R. v. 94 

Kielley v. Carson 10 

Kilham, R.v 285, 347 

King, R. f 312 

Kinsman, R. v 9 

Kipps. R.V 259 

Kirkham, R. v. 223 



TABLE OF CASES CITED. 



XI 



Kneesliaw v. Collier . 
L. 



P AGE. 
. 150 



Labadie, R. v. 
, E. V. 



Labouchere, R. » 

Lackie, R. ?' 

Lake v. King 

Lambert, R. u 

and Perrj', R. r. . 

hamhsLnde, ex parte . . . . 

Lanjr V. Gilbert 

Lantz, R. V 

Lapier's Case 

Laprise. R. ?' 

La Society, etc., St. Louis v. 

Villeneuve 

Latimer, R. « 

Laurier, R, v 

Laws t'. Eltringham. . . . 
Lawley (Lady), R. v. ... 

LebaMif, R. r 

LeDante, R. r 

Leddington, R. v 

Ledger, R. v 

Lee's Case 

Lee, R. r 

Leggott's, R. V 

Leigh's Case 

Leith V. Willis 

Leonard, R. v 

Levasseiir, U. v. . . . 162, 

Le vet's Case 

Lewis, in re 

, R. V 226, 

r. Fermor 

V. Levy .... 273, 



Lister's Case .... 

Lister, R. v 

Livingstone v. Massey . 

Lloyd, R. V 

Lloyd Jones, R. v. . . 

Lock, R. r 

LoUey, R. v 



451 
340 
263 
340 
271 
312 
92 
392 
264 
243 
282 
242 

182 
231 
267 
476 
139 
297 
230 

51 
212 
345 
342 
196 
302 

10 
133 
163 

40 
241 
369 
477 
274 
184 
312 
149 
133 
312 
241 
254 



PAGE. 

Longbottom, R. t' 212 

Longstreetli, R. v 294 

Lord Bishop of Na' al, in re 155, 162 
Lord Mayor of London, R. r. 263 

Lortie, R. v 217 

Lovell, li.v 292 

Lowenbruck, Ti. r 298 

Lows V. Telford 73 

Loydi'. Clark 11,182 

Lymh, R. r 57,222 

Lynn, R. t' 171 

M. 

Mabbett, R. r 207 

Magrath, R. r 57 

Maher, R. v 238 

Mahoney, R. v 389 

Maillonx, R. ?' 38 

Mankletow, R. r 259 

Manley, R. r 43 

Manning, R. v. ... 290, 451 

Marcus, R. v 385 

Marks v. Gilmour .... 12 

Marriott, H. v 206 

Marshall r. Piatt. ... 11, 182 

Martin, R. v. . 9, 73, 133, 230, 250, 

288, 321, 342, 389 

Mason's Case 222 

Mason, R. v. 115, 135, 150, 314, 323 

Masters, R.r 280 

Matheson, R. r 11 

Mathews, R. V 113 

Muwbey, R. v 135 

Mawgridge, R. v. 222, 517, 525, 527 

May, R. t' 305 

Mayor of Lyons n East India 

Co 9 

of S. John, R. r. . . 185 

Mazagort;, R. r 385 

Meadows, R. v 259 

Mears, R. v 167 

Mercer, R. r 11, 131 

Merry v. Green 279, 296, 297, 300 
Middleton. R. v. 280, 295, 290, 297 



xu 



TABLE OF CASES CITED. 



PAOB. 

Millar v. Taylor 152 

Miller, K. r 380 

Millis, U. V -JOO 

Mills, 1{. r ;]48 

Milnern Gilbert I'M 

Mitchell, K. I' 417 

v. Defries .... 190 

Moali, R. t' 312, 417 

Mogul Steamship Company r. 

Macgregor 480 

Mondelfct, K. v 258 

Moodie, K. r 11, 131 

Moody, R. ?) 401 

Moore, R. v 40, 300 

V. Moore 12 

IMorby, 11. r 205 

Morfit, R. ?• 111,290 

Morgan, R. v 292 

Morley's (Lord) Case . . . 221 
Morrison, R. r. . . 243, 285, 401 

Moss, R. V 349 

Most, R. V 228 

Moylan, R. v 207 

Miicklow, R. V. ... 290, 297 

Muk'ahy r. R 51,01 

Mullany, R. ?• 135 

Minister r. Lamb .... 272 

jNIurpliy's Case 390 

Mnrphy, R. r. . . . 131,177,308 

r. Manning . . . 477 

jNlurray, R. v 280, 311 

Mutters (H), R. r. . . 180,298 

Mc. 

jMacDaniel and Others, R. r. 215 
Macdonald, R. v. 243, 297, 320, 400 

M'Athey, R. r 381 

Mc Adam r. Weaver. . . . 183 

McCann, R, ?' 51 

McDonald's Case 307 

McDonald r. Cameron . . . 332 

McDowell, R. v 222 

INIcElderry, R. v 209 

McElligott, R. I'. 241 



PAGE. 

McFie, R. V 400 

McGinnis, R. v 323 

Mc( Jrath, R. v 292 

McGregor, R. r 104 

r. Thwaites ... 274 

McGrowther, R. v 30 

Mcintosh, R. v 133 

McKale, R. r 294 

McLaughlin, R. v 12 

McMahon, R. t; 57 

McNaghten's Case .... 40 

McNevin, R. v 390 

McPherson, R. v 53 

McQuarrie, R. v 348 

McQiiiggan, R. v 254 

N. 

Nash, R. V 385, 380 

Nasraith, R. v 238 

Nay lor, R. v 349 

Negus, R. r 305, 308 

Nettleton, R. v 307 

Newman, R. v. ... 207, 374 

Newton, R. v 188 

Norval, R. r 311 

O. 

O'Brien v. R 56 

OConnell r. R 92 

Ogden, R.v 315 

Okey, R.v Ill 

Oldham, R. ?• 319 

Omichnnd v. Parker . . . 133 

Oneby, R. r 223, 619 

Opie R. V 152 

Orchard, R. v 103 

Organ, R. r 188 

Osborne, R.v 204 

Osmer, R. v. . 194, 220, 520, 527 

Owen, R. r 32 

Owens, R. t' 407 

Oxenham, R. v 297 

Oxford, R.v 34 



TABLE OF CASES CITED. 



xiii 



P. 

PAGE- 

Packer, U. r !()•) 

Palmer, li. v 43 

Paquet, E. v 250, 305 

Parker, R. v. . . . 345, 401, 449 

Parkes,R. r 389 

Parkinson, U. v 342 

Parsons r. Crabbe .... 110 

Patterson, R. r 64 

Pease, R.?' 173 

Peltier, R. ?' 95 

Penson, K. v 255 

Perldns, R. v 200 

Perry, R. r 229, 257, 381 

Peters, II. v 300 

Phelps, R. f 526, 527 

Phetheon, R. r 303 

Phillimore, v. Machon . . . 162 
Pliillips, R. V. . . . 66, 249, 303 

V. Eyre . . . 191, 192 

Philpott's Case 135 

Pliilpott, R. r 261 

Pliipps, in re 391 

Pich6, II. V 228 

Pickup, U. V 343 

Pierce, R. v 254 

Pierson, F.. r 174 

Pinckn-jy's Case 371 

Pinney, R. r 112,192 

Pitman, II. r 282 

Plummer's Case 44 

Pocock. R. I' 211 

Pointon v. Hill 187 

Poole, R. V 290 

Pooley, R. t' 155 

Portugal, R.v 372 

Poulton, R. I' 209 

Power V. Canniff 182 

Poynton. H. v 282 

Pratt, R. ;• 279, 302 

Preston's Case . . . . 300,301 

Preston, R. i' 390 

Price, R. v 35, 115, 170 

Prince, R. v. . . . 40, 259, 295 
Proberts, R. v 184 





pagh:. 


Procter v. Webster . . 


. . 269 


Pym, R. ?• 


. . 212 



E. 

Ran.lall, R. v 186, 348 

Ransford, R. v 52 

Jlaynes, U. v 28S 

Rea. 11. r 255 

Read, R. ?• 249 

Reed, R. r 39, 280, 536 

Redford v. Birley .... 69 

Redman, R. i' 314 

Re d r. In<,'lis 11, 159 

Reinon, R. v 188 

Reopelle, R. u 401 

Rice and Wilton, R. V. ... 174 

Richards, R. r t?90 

Richmond, H. v 406 

Riel, R. V 11, 34, 55 

Rigmaiden's Case .... 204 

Riley, R. « 301 

Ritson, R. r 388 

Rinaldi. R. r- 403 

Rin*:, R. r 152 

Roherts's Case 52 

Roberta, R.v 317 

Robertson, R. v. . . . 315, 443 

Robins, R.v 259, 280 

Robinson, R. v. . 115, 342, 382 

Robinson's Case 294 

Robson, R. v 283, 297 

Rosinski, R. v 241 

Ross, R.v 134 

Roume, ca. pnrte . . . . 10, 11 

Rouverard, R. r 163 

Row, R. r 10,11,133 

Rowe, R.v 292, 300 

Rowlands, R. v. . . . 152. 359 

Rowley's Case 218 

Roy, R. V 51 

Rndsre R. t' 298 

Runny, R. v 420 

Russell, R. V. 45, 172, 173, 185, 186, 

224, 449 



XIV 



TABLE OF CASES CITED. 



PAGE. 

Rust, R. r 317 

Ryalls V. Leader 273 

Rylaiul, U.v 201 

Rynial, li. v 7, 3-14, 34(5 

Rymer, K. v 181 

S. 

Sadi, R. V 382 

Sainsb'iry, R. r 115 

Salmon, R. v 45, 207 

Saiuioval, R. v 9U 

Santos V. lUidge 107 

Saunders' Case .... 47,211 
Saunders, R. v. . . . 163,248 

S(!hlesinger, R. v 135 

Schmidt, R. v 3sl 

Schotield, R. i). • . . . . 51 

Schold V. Kay 149 

School, 11. V 57 

Schram, 11. v 11, 95 

Scott, R. V 7, 171, 238 

v.R 7 

V. Henderson ... 12 

Scroggs, C.J., R.V 110 

Seaman v. Netherclift . . . 272 

Searing, R. v 286 

Self, R.V 214 

Sells r. Hoare 134 

Sell is, R. V 209 

Sern4, R. v 219 

Shannon, R. v 243 

Sharman, R. v 417 

Sharp, R.V 9 

Sharpe, R. v. . . . . . . 171 

Shaw, R. V 174 

Shepherd, R. v. ... 206, 329 

Shepherd's Case 388 

Sherlock, R. v. ..... 116 

Sherman, R. v. ... 14, 63, 64 

Sherwood, R. v 221 

Shickle, R. r 287 

Simon's Case 292 

Simpson, R. v 282 

Sissinghurst House Case . . 44 



PAGE. 

Skeen, R. v 379 

Siavin, R. r 57, 60 

Smith, r/iH' 392 

, R. r. 35, 73, 205, 238, 254, 

298, 381, 382, 392, 401, 449, 467, 

620 

(Charlotte), R. r. . . 206 

(J.), R. V 380 

(Jolin), R.V 279 

(L.). R. V 230 

(W.), R. r 221 

v.R 188 

r. Midland Ry. Co. . 149 

Smyth r. McDonald .... 12 

Soares, R. r 43 

Solev, R. V 70 

Southerton, R. v. . . ' . . . 150 

•Spencer, R. v 307 

Squire, R. v 214 

Stainer, R. i- 308 

Stallion, R. v 449 

Stanbro, ex parte 401 

Stannard, R. v 174 

Stfdman's Case 221 

Steel, R.r 401 

Steele v. Brannan 164 

Stephenson, R. v 170 

Stevene v. Sampson . . 271, 273 

Stevenson, R. v 221 

Stewart, R.r. . . . 170,297,391 
St. George, R. v. . . 226, 227, 230 
Stinson V. Pen nock .... 10 

Stitt, R. i' 252 

St. John Long, R. v. . 204, 208 

St. Louis, R.V 341 

Stockdale v. Hansard . . . 271 

Stokes, R. r 34 

Stowe, R.V 196 

Stratton and Others, R. v. . 38 
Sussex Peerage Case ... 63 
Swindall, R. v 213 

T. 

Tabart v. Tipper 270 



TABLE OF CASES CITED. 



XV 



PAOB. 

Tiitlock, R. r .'574 

Taylor, K. - ... 46, 53, 22-5 

. r. McCulloiif,'!! ... 149 

TluiUman's Case 1(53 

Tliayer?'. II 369 

Theal, II. r 214 

v.li 214 

Thomas, R. v. . . . 197, 223, 371 

r. Piatt 134 

Thoinpson, K. v 11, 298 

(G.), R. v. . . . 280 

(H.), R. v. . . . 280 

'•. Farrer ... 38 

V. Shackell ... 270 

Thorpe, R. v 305, 309 

Thurborn, R. r 300 

Timinins, R. v 259 

Tinning, \l. v 160 

Tisdalo, R. r 110 

Tite, 11. V 305, 307 

Todd, II. V 385 

V Hawkins 269 

Tolfree, l\. v 298 

Tollett, li.v 298 

To. son, R. V 41, 254 

Tomlinson, R. v 135 

Tooley's Case 220, 525, 526, 527, 529 

Topham, IX. v 263 

Topping, R. V 253 

Topple, W.v 305 

Torpey, R. v 35 

Toshack, R, v 417 

Towers, R. v 214 

Townley, R. v. . . 287, 291, 293 

Train, U.v 172 

Trainer, R. v 197 

Trebiloock, R. v 303 

Trilloe, R. v 209 

Triqnet and Others v. Bath . 94 

Tuff's Case 386 

Tuke, R. r 401 

Turner, R. y 40 

Tweedy. R. r 297 

Two Sisters 491 

Tyree, R. i; 308 



U. 

PAGE. 

Tyson, R. ?- 135 

Uniaoke v. Dickson .... 10 
United Kingdom Telegraph 

Cf.., R.v 172 

United States ?•. Holmes . . 37 

Uisill r. Hales 273 



Van Bntchell, R. d 204 

Vann, II. v 170 

Vantandillo, R. r 184 

Vaughan, R. v 10,117 

Viilars r. Monsley .... 265 
Vincent, R. v. . . . 69, 92, 280 
Vint, li.v 95 

W. 

Wager, R. v 213 

Wakefield, R. r 257 

Walker, R. v. . . . 115, 135, 307 

Walker's Case 305 

Walsh, R. r 282 

Walsh's Case 302 

Walte.s, R. ?'. . . . 218,220,221 

Warburton, R. t) 370 

Ward, R. u 417 

Ward roper, R. f 35 

Warner, R. v 321, 526 

Warren, R. v 188 

Wason, R. V 501 

V. Walter 271 

Watson, II. V 184, 348 

Watts, R.t'. . . . 186,285,311 

Weale, R. v 1 

Webb's Case 163 

Webb, R.v 290, 3.55 

Webster, R. v. ... 166, 299 

Weir, R. r 212 

Welch, R.v 308 

Welham, R. v 51, 506 

Wellard, R. v 163 

Welloch V. Constantine. . . 149 



XVI 



TABLE OF CASES CITED. 



PACE. 

Wells V. Abraham . . . • 149 

West, R. V [JOO, 3J5 

White, II. V. . . . 262, 282, 285 

r. Crisp 186 

Whiteman, \i. v 469 

Wigp;, R. r 115 

Wild's Case 196 

Wiley, R. V 380 

Wilkes's Case 27 

Wilkins, 1&. v 233 

Wilkinson, R. v 299 

Willes V. Bridger 505 

Williams's Case 506 

Williams, R. v. . . Ill, 241, 248 

(Renwick), 'R.v. . . 27 

V. Nunn .... 56 

V. Stott 308 

Williamson, R. v 204 

Wilson, R. t). . . . 252, 310, 385 
V. Jones 10 



PAGK, 

Winnall.R. t' 312 

Withers, R. r 220 

Wollaston. R. v 242 

Woodward, R. v 381 

Wool ley's Case 345 

\ bright, R. V. . 115, 209, 254, 310 

Wyat, R. V 110, 112 

Wynn's Case 289 

Wynn, R. V 297 

Y. 

Yeap Cheah Neo v. Ong 

Cheng Neo 10 

Young, R. V 371 

Z. 

Zuletta, R. V 107 



■>;'j; 



TABLE OF STATUTES CITED. 



L^NITED KINGDOM. 



14 



Majrna C'harta 
?, Edw. 1, c. 9 
:5 Edw. 1, c. 18 . 
;•, Edw. 1, c. 25 . 
:3 Edw. 1, c. n-i . 
13 Edw. 1, Stat. 4, 
13 Edw. 1, c. 34 
13 Edw. 1, c. 49 
28 Edw. 1, c. 11 
33 Edw. 1 . . 
1 Edw. 2, St. 2 . 

1 Edw. 3, St. 2, c 

2 Edw. 3, c. 3 . 

4 Edw. 3. c. 11 . 
20 Edw. 3, c. 4 . 
25 Edw. 3, St. 5, c 

28 Edw. 3, c. 13 

I Ric. 2, c. 4. . 

5 Ric. 2, St. 1. c. 7 
7 Ric. 2, c. 5 . 

7 Ric. 2, c. 15 . 
12 Ric. 2, c. 2 . 
15 Ric. 2, c. 2 . 
5 Hen. 4, c. 5 . 

8 Hen. 6, c. 9 . 

II Hen. 7, c. 1 . 

23 Hen. 8, c. 1, s. 3 

24 Hen. 8, c. 12 
27 Hen. 8, c. 10 

27 Hen. 8, c. 16 

28 Hen. 8. c. 15, s 
, s 

31 Hen, 8, c. 1 . 

32 Hen. 8, c. 9 . 

33 Hen. 8, o. 9 . 



I'AGE. 



149 



1,38 
507 

9:5 



. 162 
248, 250 
138, 507 
. 507 
. 138 
. 143 
. 138 
. 79 
. 138 
138, 507 
11, 54, 55, 57 
58,59 
. 11 
138, 507 
. 73 
. 507 
. 138 
. 143 
. 73 
. 518 
. 73 
. 58 
. 513 
. 157 
. 12 
. 12 
. 101 
. 101 
. 12 
138, 507 
. 509 









PAGE. 


:53 Hen. 8, c. 20, s. 3 . . . 


. 21 


3;; Hen. 8, c. ;59, s. 50 . . 


. 12 




. 12 

. 113 


1 Edw. 6, c. 1 


n 1 




. 156 
. 158 


, 8. -I 

2 & :; Edw. 6, c. 1 . 




5 & 6 Edw. 6, c. 16 




10, 131 




1 


. 131 
11 


> 

1 Mary, c. 6. . . 


1 Eliz. c. 2, s. 2 






. 158 


1 '-! 






. 157 
. 59 


13 Eliz., c. 2 . 






13 Eliz., c. 5 . 






. 12 


18 Eliz., c. 5. . 






11 


n i 






139, 150 

. . 150 

. 12 


, 0. 1 

1 'i 






27 Eliz., c. 4 . 






31Eliz., c. 11 . 






. 73 


43 Eliz., c. 6 . 






. 12 


1 Ja. 1, c. 11 . 






. 254 


1 Ja. 1, c. 12 . 






. 213 


3 Ja. 1, c. 7 . . 






. 13 


21 Ja. 1, c. 14 . 






. 12 


21 Ja. 1, c. 15 . 






. 73 


3Car. 2, 0.1. . 






. 157 


13 Car. 2, stat. 2, c. 2 


,s. IC 


1 . 13 


14 Car. 2, c. 4, s. 20 


.156, 


157, 158 


22 & 23 Car. 2, c. 9. 




. 12 


29 Car, 2, c. 7 . . 




. . 160 


1 W. &M.. sess. 2, c. 2. 


. 19 
am. 18 


,pro 


1 W. & M., c. 18, s. 15 . . 


11, 159 


7 & 8 Will. 3, c. 4 . . . 


. 11 


9 Will. 3, c. 15 . . . . 


. 13 


9 & 10 Will. 3, c. 35 . . 


155, 156 


9 «& 10 Will. 3, c. 7 


7 


. 


. 211 



B 



xviii 



TABLE OF STATUTES CITED. 



10 Will. ;',, c. 23 



H. 1 



11 & 12 Will. :{, c. 7, 8. 



-, 8S, 



8, 



2 & 3 Anne, c. 20, s. .'54 

4 & 5 Anne, c. ',\, s. 20 

5 Anne c. 14, s. 4 . . 
7 Anne, c. 12, s. 15 . 
. 8. 4 . 



, 8. 6 

7 Anne, c. 21, s. 10 . 
1 Geo. 1, 8t. 2, c. 5 . 

, 88. 1 

8 Geo. 1, c. 2, 88. 36, 37 
8 Geo. 1, c. 24, s. 1 . 
, 8. 6 . 

,9 Geo. 1, c. 19 . . . 
,8.4. . 



6 Geo. 2, c. 35 . . . 

, 8. 29 . 

9 Geo. 2 c. 5, s. 4 . . 

11 Geo. 2, c. 19, 8. 4 . 

12 Geo. 2, c. 28 . . 

, 8. 3 . 

,8.4 . 

, 8. 11 . 

13 Geo. 2, c. 19 . . 

14 Geo. 2, c. 17, p. 1 . 

17 Geo. 2, c. 39, a 3 . 

18 Geo. 2, c. 30 . . 
18 Geo. 2, c. 34 . . 
25 Geo. 2, c. 36, 8. 8 . 
25 Geo. 2, c. 37, s. 9 . 
12 Geo. 3, c. 11 . . 
, 8. 3 . 



12 Geo. 3, c. 24, s. 1 . 
14 Geo. 3, c. 83, s. 11 
21Geo. 3, c. 49. . . 

, s. 1 . 

, 8. 2 . 

27 Geo. 3, c. 1 . . . 

28 Geo. 3, c. 49 . . 
30 Geo. 3, c. 48 . . . 
36 Geo. 3, c. 7, s. 1 . 
,8.6 . 



PACIE. 

. 509 
. 181 
. 102 

. io:{ 

. 45 

. 57 

. 13 

. 39 

. 94 

. 94 
. 94 

22,23 

. 192 

2,5,8 71 

. . 182 

103, 104 

105, 192 

. 11 

. 182 

11 

. 182 

. 370 

. 340 

11, 509 

182, 340 

182, 340 

183 

11, 180, 509 
. 13 
. 23 
. 102 

180, 509 
. 174 
. 143 
. 63 
. 63 
. 453 
11 
11 
. 180 

174, 181 
. 11 
. 11 
. 59 
54,55 
. 54 



1)7 Geo. :>, c. 70, s. 1 . 
37 Geo. 3, c. 123 . . 

39 Geo. 3, c. 37, 8. 1 . 
39 Geo. 3, c. 79, S8. 1, 6 

, 88. 8, 9 

39 Geo. 3, c. 85 . . 
39 & 40 Geo. 3, c. 93 . 
42 Geo. 3, c. 119, s. 2. 
49Geo. 3, c. 126 . . 

,8.1 . 

, 8. 2 . 

, 8. 3 . 

, 88. 4, 5 

52 Geo. 3, c. 104 . . 

, 8S. 1, 6 

, 8. 2 . 

52 Geo. 3, c. 143, 8. 6 
52 Geo. 3, c. 155. s. 12 

52 Geo. 3, c. 156, 88. 1, 

53 Geo. 3, c. 127, 8. 1 

, 8. 2 . 

, 8. 3 . 

53 Geo. 3, c. 160 . . 

54 Geo. 3, c. 145 . . 
54 Geo. 3, c. 146 . . 
, 8. 1 . 

56 Geo. 3, c. 138, s. 2 

57 Geo. 3, c. 6 . . . 
57 Geo. 3, e. 19, ss. 24, 25 

, 8. 25 

59 Geo. 3, c. 12. s. 7 . 

59 Geo. 3, c. 09 . . 

60 Geo. 3 & 1 Geo. 4, c. 1, 
60 Geo. 3 & 1 Geo. 4, c 8 
I Geo. 4, c. 90, s. 1 . 
1 & 2 Geo. 4, c. 88, s. 1 
5 Geo. 4, c. 83 . . . 

, 88. 3, 4 

5 Geo. 4, c. 84, s. 22 . 
5 Geo. 4, c. 113, s. 2 . 

, 8. 9 . 

, 8. 10 

, 8. 11 



TAliB. 

63 
308 
88 
101 
!)0 
88 
90 
311 
23 
181 
10, 131 
131 
131 
131 
132 
308 
87 
88 
416 
159 
144 
162 
162 
162 
156 
23 
59 
15 
150 
54 
88 
90 
305 
11,95 
8.1 74 
92 
101 
142 
187 
187 
147 
105 
106 
107, 108 
. 108 



TABLE OF STATUTES CITED. 



XIX 



6 Geo. 4, c. 105, 8.10. . 

7 & 8 Geo. 4, c. L'8, s. 5 . 

, s. 7 . 

, 8. 8 . 

, 8. 9 . 

,H. 10 

,8. 11 

, 8. VI 

, 8. l;J 



7 & 8 Geo. 4, c. 29, 8. 44 
7 <!c 8 Geo. 4, c. 30, 8. 18 
7&8Geo. 4,c. 53,8.56. 
9 Geo. 4, c. 31, 8. 1 . . 

, 8. 14 . . 

, a. Ill 



9 Geo. 4, c. 32, 8. 3 . . 
1 Will. 4, e. 66 s. 1 . . 

3 <fc 4 Will. 4, c. 106, 8. 10 

4 & 5 Will. 4, c. 07 . . 

5 & 6 Will. 4, c. 59, s. 2 

5 & 6 Will. 4, c. 62, 8. 13 

6 & 7 Will. 4, c. 66 . . 

7 Will. 4 & 1 Vict. c. 85, s 
7 Will. 4 & 1 Vict. c. 88, s 

, 8 

7 Will. 4 & 1 Vict. c. 90, s, 
7Will. 4 & 1 Vict. c. 91 

, 8. 

1 & 2 Vict. c. 38, 8. 2 . 
1 & 2 Vict. c. 82, 88. 12, 13 
1 & 2 Vict. c. 105 . . . 
3 & 4 Vict. c. 9, ss. 1, 2 . 
, 8. 3 . . 



5 & 6 Vict. c. 29, 8. 21 . 
, ss. 24, 25 

5 & 6 Vict. c. 39, 8. 6 . 
5&6 Vict. c. 51, 88. 1,2 

6 & 7 Vict. c. 26, 8. 19 . 

, 22, 23 

6 «& 7 Vict. c. 40, 8. 2 . 
6 & 7 Vict. c. 96, 8. 3. . 



-. 8. 4. 



-, 8. 6. 

-, s. 7. 



1 



I'AOB. 
. 131 
22 
. 27 
. 26 
. 26 
. 27 
. 26 
. 101 
. 29 
. 329 
. 469 
. 416 
. 249 
. 229 
. 248 
29,30 
. 416 
. 23 
147, 148 
. 477 
. 138 
. 182 
22f! 
102 
104 
26 
143 
106 
187 
145 
133 
271 
271 
244 
145 
379 
61 
244 
145 
335 
274 
275 
275 
267 
2tJ6 



7 & 8 Vict. c. 40 . . 

8 & 9 Vict. c. 100, 8. 14 
8 & 9 Vict. c. 106 . . 

8 & 9 Vict. c. 109 . . 
, 8. 8 

, 8. 17 

9 ct 10 Vict. c. 24. s. 1 
9 & 10 Vict. c. 59, 8. 4 
9 & 10 Vict. c. 62 . , 
9 it- 10 Vict. c. 95, 8. 57 
11 Vict. c. 12 . . . 
11 & 12 Vict. c. 12, 8. 3 

, 8. 4 

, 8. 8 

11 & 12 Vict. c. 42 . 

, 8. 22 

11 & 12 Vict. c. 43, 8. 

11 & 12 Vict. c. 78 . 

12 & 13 Vict, c. 92, 88. 2, 3 
12 & 13 Vict. c. 96 . 

, 88. 1, 2 

8. 2 . 

12 & 13 Vict. c. 103, 8. 15 

13 & 14 Vict. c. 26 . . 

14 & 15 Vict. c. 99, 8. 16. 
14 & 15 Vict. c. 100, 8. 29 

, 8. 30 

16 & 17 Vict. c. 69,8. 12 
16«S;17 Vict. c. 99 . . 

16 & 17 Vict. c. 119, 88. 1, 

17 & 18 Vict. c. 38, 8. 1 . 

,8.2. 

,8.4. 

17 & 18 Vict. c. 102, 8. 2 

, 8. 3 

17&18 Vict. c. 104 . . 



I'ACiB. 

. 523 
41 

. i;i8 

. 509 
. 175 
. 349 
. 26 
. 159 
. 22 
. 406 
. 223 
54,00 
. 61 
. 48 
273, 524 
. 524 
. 50 
. 528 
. 477 
9 
. 102 
. 104 
. 307 
. 101 
. 133 
139, 163 
2 
. 86 
26, 105 
1,6 179 
. 178 
. 175 
. 174 
125, 126 
. 126 
. 487 
. 487 



479 

18 & 19 Vict. c. 42, 8. 4 . 
18 & 19 Vict. c. 63 . . 



•, 8. 206 
-, 8. 207 487, 488 
•, 8. 208 . 489 
,8.239 . 494 
, 8. 243 491, 492 
-, 88. 477- 
.... 288 
. 137 
. 308 



XX 



TABLE OF STATUTES CITED. 



18 & 19 Vict. c. PI, s. 21 
20 & 21 Vict. c. :'., . . 

20 it 21 Vict. c. 8:!, s. 1 . 

21 & 22 Vict. c. i)0, 8. 40 

22 Vict. c. :{2, 8. 1 . . 
22 & 2:! Vict. c. :15, s. 24 
2:5 & 24 Vict. c. ;'.2, 8. 2 . 
24 & 25 Vict. c. ))4, 8. 2 
, 88. :;, 

, 8. 8 



24 & 25 Vict. c. 9(: 



8. 1 
8.:'. 

8.4 

8. 7 

8. 10 
8. 11 
8. 18 
8.21 

8. 23 
8.26 
8. 27 
8.28 
8. 29 
8.30 
8.31 
8. 32 
8.33 
8. 34 
s. 35 
8. 36 
8. 37 
8. 38 
8. 39 
8.40 
8.42 
s. 43 
8.44 
8.45 
8.46 
8.47 
8.48 
s. 49 
s. 50 



PAOB. 

9 

26, 147 

. 105 

. 163 

. ;!86 

. 29 

. :560 

159, 160 

. 48 

5 . 49 

. 50 

. 381 

4, 316 

. 297 

. 320 

. 320 

. 327 

. 327 

286, 327 

286, 327 

. 328 

. 328 

321, 322 

. 322 

. :'.22 

. 323 

. 329 

. 329 

320, 330 

. 331 

. 332 

320, 332 

. 333 

. 333 

290, 355 

313, 334 

. . 313 

. . 313 

. . 314 

. . 315 

314, 315 

. . 314 

, . 314 

. . 315 

317, 318 



24 & 25 Vict. c. 96 s. 51 

,8. 52 

8. 53 
8.54 



24 & 25 Vict. c. 97 



88.55,56,57 318 



88. 58, 
8. 60 
8. (il 

8. 62 
8. 63 
B. 64 



59. 



PAG a 

. 318 

. :U7 
. :!16 
. 318 



319 
3:55 
335 
335 
3:!6 
336 



88. 67, 68 . 3:!7 
8. 68 . 305, 311 



8. 69 

8. 70 

8. 74 

8. 75 



. . 338 

. . 338 

. . 340 

372, 373 



88. 75, 79 . 302 

s. 76 . . 373 

8. 77 . . 374 

8. 78 . 375, 376 
8. 79 375,376 

8. 80 . . 376 

8. 81 . . 378 

8. 82 . . 378 

8. 83 . . 378 

s. 84 . . 378 

s. 85 . . 379 

8. 88 . . 341 

8. 89 . . 347 

8. 90 . . 341 

8. 91 . . 381 

8. 95 . . 382 

8. 97 . . 382 

8. 98 . . 4S 

s. 99 . . 50 

s. 101 . . 150 

8. 102 . . 151 

8. 109 . . 31 

8. 114 . . 340 

8. 117 . . 19 

8. 119 . . 18 

.... 449 

8. 1 . . 449 

8. 2 . . 449 



TABLE OF STATUTES CITED. 



XXI 



24 & 25 Vict, c 97, 8. 

s. 
s. 
s. 



3 

4 

f) 

(i 

7 

8 

U 

10 

11 

12 

14 
15 
16 
17 
18 
19 
20 
21 
22 
2S 
24 
25 
26 
27 
28 
29 
30 
31 
32 
33 
34 
35 
36 
37 
38 
39 
40 
41 
42 
43 
44 
45 
46 
47 



PAGB. 

. 449 

. 450 

. 450 

. 450 

. 451 

. 452 

. 456 

. 457 

. 72 
72 

. 475 
457, 458 

. 458 

. 451 

. 450 

. 452 

. 469 

. 469 

. 469 

. 470 

. 470 

. 471 

. 472 

. 450 

. 452 

. 458 

. 459 

. 460 

. 400 

. 462 

. 461 

. 473 

. 463 

. 464 

. 465 

. 466 

. 473 

. 467 

. 468 

. 454 

. 454 

. 454 

. 455 

. 455 

. 455 



24 & 25 Vict. c. 97 



24 & 25 Vict. c. 98 



48 

50 

52 

51 

56 

58 

59 

63 

67 

73 

75 

1 

2 

3 

4 

5 

6 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

29 

31 

32 

33 

34 

35 



I'AOK. 

. 455 
453, 468 
475,476 

. 475 

. 48 

. 449 

. 449 

. 50 

. 31 

. 19 
18 

. 393 

. 393 

. 395 

. 395 

. 396 

. 39G 

. 397 

. 399 

. 414 
414,415 

. 415 

. 400 

. 411 

. 411 

. 413 

. 412 

. 412 

. 411 

. 403 

. 400 

. 400 

. 400 

. 400 

. 409 

. 409 

. 402 

. 406 

. 406 

. 406 

. 404 

. 405 

. 405 
408 

. 408 



XXII 



TABLE OF tiTATrTES CITED. 



24 & 25 Vi(!t. c. i»8, s. 

,8. 



24 &. 25 Vict. c. \)\ 



24 & 25 Viet. c. 100 



H. 



37 
38 
44 
45 
48 
49 
51 

1 



4 

5 

6 

7 

8 

9 

11 

12 

13 

14 



fl. 15 

8. 1() 

8. 17 
8. ]8 

8. 19 

8. 20 
8. 22 
24 
25 
2() 
30 
35 
38 



s. 7 

8. 1 
88. 

88. i: 

8. 12 



I 
11 



I'AnK. 
397 
398 
41(» 
385 
4 
416 
48 
19,18 
437 
1, 437 
438 
438 
441 
442 
439 
439 
439 
443 
443 
444 
443 
438, 439, 
441 
. 443 
. 442 
. 444 
. 445 
. 445 
. 445 
. 445 
. 440 
. 441 
. 441 
. 446 
. 48 
. 19 
. 225 
. 15 
. 227 
. 225 
. 522 
. 226 
226 
226 
227 



15 
14 



24i»!:25 Virt. c. 10( 





I'A«H. 


, H. 13 


. . 227 


8. 14 


220, 227 


,8. 15 


220, 227 


8. 10 


227 


8. 17 


. . 236 


8. 18 


. . 230 


8. 19 


. . 220 


8. 20 


230, 231 


8. 21 


. . 232 


8. 22 


. . 232 


8. 23 


. . 232 


8. 24 


■ . 233 


8. 20 


. . 238 


8. 27 


. . 201 


8. 28 


. • 233 


8. 29 


. . 234 


8. 30 


. . 234 


0. 31 


. . 234 


8. 32 


. . 235 


8. 33 


. . 235 


8. 34 


. . 230 


8. 35 


. . 230 


s. 36 


. . 159 


8. 37 


. . 245 


s. 38 


. . 243 


8. 39 


. 486 


8. 40 


. 48(> 


8. 41 


. 486 


8. 42 


. 247 


8. 47 


231, 243, 




247 


s. 48 


. 250 


8. 49 . 


. K57 


8. 50 . 


. 250 


s. 51 . 


. 251 


8. 52 . 


242, 251 


H. 53 . 


. 256 


8. 54 . 


. 257 


8. 55 . 


. 258 


8. 56 . 


. 259 


8. 57 


40,253 


8. .58 . 


. 251 


s. 59 . 


. 252 


8. 60 . 


. 228 


s. 61 . 


. 101 



TABLE OF STATUTES CJTEP. 



XXIll 



24&2r)Viot. c. lOO.s. <;2 . 1( 
. , B. 03 . 

• , 8. <>7 

,8. 70 . 

,8. 71 . 

25 & I'd Vict. c. 18, 8. 1 . 
20 & 27 Vict. c. 44. 8. 1 . 
20 & 27 Vict. c. I():t . . 
28 & 2i) Vict. c. 12«}, 8. :{7 . 
2!» A :'.() Vict. c. 100, 88. 25, 2(i 
20 it ;i() Vict. c. 117, s. 14 . 
:;o it :il Vict. c. 119, 8S. 7 . 

,8. 8 



8. 



;',0&:!1 Vict. c. 124,8. 11 
;50 & :U Vict. c. 128, 8. 12 
•M & :]2 Vict. c. 24. . . 
:51 & :i2 Vict. c. l!7, 8. 4 
;51 & \V2 Vict. c. IKJ 

, 8. i 



:52 & :•.:•. Vict. c. 57, 8. 3 . 

,8.4 . 

, 8. 5 . 

32 &.r, Vict. c. 02,8. 13 . 

32 & 33 Vict. c. ()8, 8. 4 . 

33 «fe 34 Vict. c. 23 . . . 

. , 8. ;> 

,8. 4 . 

7 . 

8 . 
, ss. 0-20 

,8. 31 . 

33 & 34 Vict. c. 40 . . . 
33 & :54 Vict. c. 65, 88. 2, 3 
33 & :54 Vict, c 00 . . . 
.8. 4 . 



PAdB. 

1,242 

248 

48,227 

18 

10 

18 

18 

200 

145 

04 

17 

304 

304 

304 

!) 

;i05 

50 

407 

:;8i 

.207,300, 
381 
200 
3()8 
307 
3()8 
350 
133 
.>4,508 
24 



I 
-.8. 



-,8. 



6 

7 

-, 8. 8 



, 8. 



33 & 34 Vict. c. 90, s. 9 
, 8. 10 



24 
24 
25 
25 
25 
59 
133 
151 
05 
90 
90 
00 
90 
97 
90 
90 



3 

24 

1() 
^> 

4 

5 
8 
10 



33 & 34 Vict. c. 90, H. 11 

, 8. 16 

, 8. 31 

X', & :!4 Vict. c. 03 . . 
3;'. it 34 Vict. c. 98, s. 18 
34it35 Vict. c. :'.1,8. 2 
35 it 30 Vict. c. 19 . . 
35 & 30 Vict. c. 3:5, 8. 
, 8. 

:io it :!7 Vict. c. 85, 8. 
I'.cS it 30 Vict. c. 24, H. 
38 it 30 Vict. c. 25, 8. 

, 8. 

, 8. 

, 8. 

38 it 39 Vict. (!. 63 . . 
38 it 30 Vict. c. 86 . . 

, 8. 3 

, 8. 4 

, 8. 5 

, 8. 7 

,8. 15 

30 it 40 Vict. c. 30 . . 

, 8. 103 

30 it 40 Vict. c. 80,8.4 
41 & 42 Vict. c. 73 . . 

43 it 44 Vict. c. 45 . . 

44 it 45 Vict. c. 58, s. 

, 8. 

, a. 

44 it 45 Vict. c. 00, 8. 

45 it 40 Vict. c. 50, s. 
45 it 46 Vict. c. 75 . 

, 8. 

, 8. 

40 VicU c. 3, s. 2 . 

, 8. 3 . 

, ss. 4, 7 

, 8. . 

40 it 47 Vict. c. 51,e. 

,8. 

. 8. 



4. 
153 
156 
2 . 
23 

• 

12 

10 



48 & 49 Vict. c. 69, 8. 
. s. 



, 8, 



1 

2 

2 
3 
4 



l'A(iK. 
. 9«^ 

. 95 
. 06 
. 283 
. 401 
. 480 
. 30 
. 130 
. 120 
. 404 
112,:!12 
. 303 
. 304 
. 306 
4 
. 496 
. 481 
. 481 
. 482 
. 482 
. 484 
. 482 
. 131 
. 231 
. 489 
9 
. 242 
. 57 
64 
. 366 
. 272 
. 285 
. 35 
283, 298 
283, 298 
. 75 
. 76 
. 76 
. 75 
. 127 
. 126 
. 129 
. 167 
. 250 
242, 249 



XXIV 



TABLE OF STATUTES CITED. 



48 & 40 Vict. c. G9, s. 6 

, s. 7 

,s. 10 

50 & 51 Vict. c. 25 . . 
50 & 51 Vict. c. 28, s. 2 



ss. 3, 5 



PAGE. 

. . 1()6 
. . 258 
. . 167 
. . 27 
426, 427, 
428 
. 422 



PAGE. 

50 & 51 Vict. c. 28, ss. 4, 5 . 425 

, gs. 6, 16 . 429 

, s. 7 . . . 424 

, s. 17 . . 427 

, s. 18 . . 431 

, s. 19 . . 430 

, s. 20 . . 428 



CANADIAN STATUTES. 



C. S. C. c. 52, s. 13 
C. S. C. c. 06 . . 

, 8. 84 

, s. 85 



-, 8. 121 . 

-, 8. 152 . 
-, 8. 1515 . 
-, 8. 154 . 
-, 88. 158, 151) 



C. S. C. c. 68, 8. 68 
C. S. C. c. 92 . . , 

, 8. 72 , 

C. S. U. C. c. 77,8.6, 
C. S. U. C. c. 104 . , 
C. S. L. C. c. 10, s. 1 , 

, 8. 2 

, s. 3 , 



-, 8. 5 

-, 8. 6 



, s. 7 

.8. 8 

, 8.9 



88, 



C. S. L. C. c. 23 . . 
40 Geo. 3 (P. C.) c. 1 
4 & 5 Vict. (P. C.) c. 26, s. 5 

22 Vict. (P. C.) c. 32, p. 22 

23 Vict. (P. C.) c. 29, 8. 4 . 
, 8. 5 . 



-,8. 6 



24 Vict. (P. C.) c. 18, 8. 28 
27 & 28 Vict. (P. C.) c. 18 . 
27&28Vict. (P. C.)c.69. 
29 Vict. (P. C.) c. 46 . . 
R. S. N. S. 3 Ser. c. 153, a. 9 
• c. 159, 68. 2 



PAGE. 
418 

463 

463 

463 

418 

463 

463 

463 

115 

245 

323 

320 

51 

160 

87 

88 

87 

87 

89, 90 

90 

90 

90 

160 

10 

458 

460 

113 

243 

463 

418 

86 

476 

eo 

116 



• c. 160, s. 



160 
161 



R. S. N. S. 3 Ser. c. 169, 8. 22 
R. S. N. B. Vol. 1, c. 144, 8. 2 

c. 145, 8. 2 

, 8. 3 



^ c. 147, 8. 

, c. 158, 8. 

12 Vict. (N, B.) c. 29 . . 

19 Vict. (N. B.) c. 42, p. 5 . 
27 Vict. (N. B.) c. 8, 8. 2 . 
R. S. B. C. No. 46 . . . 
c. 85, ss. 10, 11 

20 Geo. 3 (P. E. I.)3Sess.c. 3 
20 Vict. (P. E. I.) c. 10, 8. 5 
24 Vict. (P. E. I.)c. 7.8. 10 
24 Vict. (P. E.I.)c. 27,8.3 

31 Vict. (P. E. I.) c. 14 . 

32 & 33 Vict. c. 19, s. 42 
32 & 33 Vict. c. 21, 8. 38 
32 & 33 Vict. c. 29, S8. 55, 56 



R. S. 0. (1877) e 
R. S. C. c. 1 . 

,8 



189. 



R. S. C. c. 5, 
R. S. C. c. 7, 



7(13) 
7 (28) 
40. 
65. 



-, 8. 67 



R. S. C. c. 8 



', s. 
■,s. 

•, 8. 

•, 8. 



48. 

70. 

76. 

77. 
-, 8. 78 . 
-,8. 79. 
-, 8. 80 . 
-, 8. 81 . 
-, 8. 82 . 



PAGE. 

467 
160 
161 
162 
72 
340 
416 
116 
116 
160 
86 
160 
116 
160 
161 
160 
398 
298 
23 
27 
. 160 
2 
. 393 
. 133 
. 115 
. 129 
. 125 

127, 128 
. 128 
. 128 

82, 128 

128, 247 
82, 128 

. 128 

. 128 

. 128 

82, 128 



92 



XXVI 



CANADIAN STATUTES. 



R. S. C. c. 8, s. 83 . 

, 8. 84 . 

, 8. 85 . 

, 8. 86 . 

, 8. 87 . 

, 8. 88 . 

, 8. 89 . 

, 8. 90 . 

, 8. 100 

, 8. 102 

, 8. io;5 

, 8. ICG 

, 8. 117 

,8. 118 

R. S. C. c. 9, 88. 09-80 

, 8. 82. 

R. S. C. r. 11,88.6, 7,8 
R. S. C. c. 17,8.9. 
R. S. C. c. 29, 8. 69 

, 8. 70 

8. 72 

R. S. C. c. 32, s. 210 

, 8. 211 

, 8. 212 

, 8. 213 



, s. 214 

, 8. 219 

, 8. 221 

R. S. C. c. 34, 8. 91 

, 8. 94 

,8.98 

,8.99 

, 8. 100 

, s. 113 

, 8. 320 

R. S. C. c. 35, 8. 2 (/) 

. (ft) 

(i) 

(i) 

{k) 

(0 

(m) 

, 8. 79 . 

, 83. 79-85 



8: 



TAGB. 

. SO, 128 

25, 126, 127 

120, 127 

127, 128 

120, 127 

128 

129 

129 

130 

6, 474 

129 

128 

127 

128 

128 

128 

271 

435 

120 

121 

149 

418 

418 

334 

83, 231, 244 

45() 

. . 116 

. . 113 

122 

. . 116 

334, 418 

. . 244 

231, 244 

. . 334 

2, 498, 499 

. . 418 

. . 325 

. . 325 

. . 324 

. . 326 

. . 324 

. . 325 

. . 324 

324, 32o 

. > iv24 



]{. S. i\ c. 35 



R. S. V. c. 36, 
R. S. C. c. 37 
R. S. C. c. 38 



R. S. ('. c. 41 



8.80 . 
8. 81 . 

8.82 . 

8.83 . 
8. 84 . 
8. 85 . 
8. 86 . 

8.87 . 

8.88 . 
8. 89 . 
8. 90 . 

8.91 . 

8.92 . 
8. 93 . 

8.94 . 

8.95 . 
8. 96 , 
8.97 , 
8. 98 , 
8. 99 . 
8. 100 , 
8. 101 
8. 102 
8. 103 
8. 104 . 
8. 105 , 
8. 107 . 
8. 108 
8. 110 

88. 27, 
88. 17, 

s. 55 
s. 56 

8. 57 
8.58 

8.61 

8.62 
8.63 
8.56 
8.82 
8.94 
8. 95 
8.99 
8. 106 
s. 109 



i24, 



28 
18 



PAOB- 

. 324 

324, 325 
. 325 
. 325 
. 325 
. 325 
. 401 
. 418 

325, 41 g 
. 350 
, 326 
. 466 
. 233 
. 350 
. 350 

245, 467 
. 466- 
. 466 
245, 466 
245, 46(> 
. 351 
. 467 
. 351 
. 165 
. 115 
. 338 
. 466 
. 350 
48,50 
. 115 
. 115 

. iia 

. 243 

. 236 

. 236 

. 233 

. 465 

. 245 

. 338 

. 65 

. 351 
351, 352 

. 435 

. 368 

. 65 



CANADIAN STATUTES. 



XXVlt 



R. S. r. c. 41 
K. S. C. c. 43 

R. S. C. c. 48 



R. S. C. c. 45 



R. S. ('. c. 50 



R. S. C. c. 51 
R. S. C. c. 53 



R. S. C. c. 54, 



R. S. C. c. 58 
R. S. C. c. 61 



R. S. C. c. 62 



R. S. C. c. 63 



R. S. C. c. 64 
R. S. C. c. 65 



R. 8. C. c. 67 



R. S. C. c. (58, 
R. S. C. c. 69, 
R. S. C. c. 71 



,8.112. . 
, ss. 23, 26. 
•, 6S. 94-105 
,8. 106. 
, 8. 107 . 
,8. Ill . 
,8. 112. 
, 8. 113 . 
, s. 18 . 
, 8. 22 . 
■, 8. 23 . 
, 8. 24 . 
,8. 11 . 
•, 8. 70 . 
, 88. 92-100 
,8.98 . 
, 8. 101 . 
, 8. 139 • 
, 8. 26 . 
, 8. 27 . 
, 88. 35, 43 
,8.41 . 
, s. 78 . 
, 8. 79 . 
, 8. 137 . 
, 8. 138 . 
,8.15 . 
,8.54 . 
,8.55 . 
, 8. 56 . 
,8.28 . 
, 8. 29 . 
, 8. 17 . 
,8.31 . 
,8.32 . 

.8. 7 . 

,8.37 . 
•. 8. 38 . 
•, 88. 39, 42 
, 8. 18 . 
, 8. 19 . 
, 8. 20 . 
, 8. 11 . 
, 88. 3(5, 37, 
, 8. 8 . . 



PACE. 

351, 435 
27,32 47G 
86 
169 
169 
73 
51 
83 
113 
339 
369 
65 
13 
15 
86 
116 
83 
361 
26 
15 
86 
116 
469 
476 
245 
471 
113 
431 
432 
418 
419 
435 
426 
432 
433 
433 
168 
168 
168 
133 
245 
115 
115 
38 . 245 
492 



n. .S. C. c. 73 
R. S. ( '. c. 74 



R. S. C. c. 74 



R. S. C. c. 75 



R. S. C. c. 77, 
R. S. C. c. 78; 
R. S. C. c. 79 
R. S. C\ c. 80, 



R. S. C. c. 81 



R. S. C. c. 89 
R. S. C. c. 91 



R. S. C. c. 94 
R. S. C. c. 95. 



R. S. C. c. 99 
R. S. C. c. 101 



R. S. C. c. 102 
R. S. C. c. 103, 



R.S. C.C.104 



R. S. C. c. IOC 





PA(iB. 


s. 16 . 


. . 419 


a. 34 . . 


. . 419 


8. 65 . 


. . 487 


e. 66 . 


487, 488 


s. 67 . 


. . 489 


8.87 . 


. 77, 189 


8.90 . 


. . 494 


8. 91 . 


491, 492 


8. 114 . 


. . 487 


8. 124 . 


. . 243 


s. 8 . . 


. . 419 


8. 17 . . 


. . 494 


8. 18 . . 


. . 492 


8. 43 . . 


. . 243 


s. 14 . 


. . 233 


88.51,52 


. . 491 


88. 10, 11 . 


. . 494 


s. 56 , . 


. . 419 


8. 74 . 


. . 494 


8. 2 . . 


237, 336 


SH. 6, 22 


. . 245 


8. 27 . . 


. . 353 


8.34 . 


. . 354 


8.35 . 


. . 354 


8. 36 236, r 


536,352,462 


s. 37 . 1 


J45,353, 462 


8.5 . 


. . 113 


ss. 1-6 


. . . 186 


s. 7 . 


. . . 186 


8.4 . 


. . 245 


88. 15, 21 


. . 462 


8.21 . 


. . 328 


8.69 . 


. . . 419 


8.41 . 


. . . 419 


s. 45 . 


321, 401 


8.26 . 


. . 419 


s. 39 . 


. . . 245 


8.40 . 


. . . 419 


8.41 . 


. . . 461 


8.31 . 


. 419, 420 


8.46 . 


. . . 246 


ss. 64-68 


. . . 128 


8.(58 . 


. . . 82 


8.(59 . 


. . . 247 


s. 70 . 


. . . 82 



xxviii 



CANADIAN STATUTES. 





PACiE. 


E.S.C.C. 106,8. 71 . . . 
, 8. 73 . . . 


. 128 

82, 128 


, 8. 74 . . . 

11. S. C. c. 106, s. 75 . . 


. 86 
125, 127 




125, 127 

127, 128 

. 127 

126, 127 


« nn 


, 8. 1 1 . 


■ , 8. /o . 

, s. 79 . . 


, 8. 82 . . . 

. - . a W 


. 129 
. 129 
. 130 

82, 127 
. 86 


. CI Rt 


_ n 4>f> 


■ - ) S. i'U . 

n 00 


■n ^M 


. .. .. . a 1 "0 


. 150 
. 139 
. 499 


— u 1 '^1 


E. S. C. c. 107 . . . . 


n '^ 


.496,497 


, D. _ . . 




.498,499 




.- .. rt Ifi 


. . 498 
. 498 
. 498 
. 499 
. 500 
. 500 
498, 499 


.. . . « 17 


<i '>'• 


■, 8. — . . 


, H. -" . . 

n "i 


. 8. -1 . 


, a. -0 . . 

a 90 




. 9fVi 


. 498 
. 498 


K. S. C. c. 108 ... . 


n 1 '"' 


. 420 
. 420 


E. S. C. c. 109 . . . . 


E. S. C. c. 118. 8. 28 . . 


. . 420 


E. S. C. c. 119, s. 45 . . 


. . 420 


E. S. C. c. 120, s. 53 . . 


. 358, 375 


o SI 


.372,420 
. 338, 420 


E.S.r.c. 121, s. 19 . . 


n "ft 


. . 436 
. 338, 420 


E. S. C. c. 122, 8. 32 . . 


n T^ 


. 436 
. 421 


E. S. C. c. 123, 8. 14 . . 


Q '^(\ 


. . 436 
. . 421 


E. S. C. c. 128, 8. 7 . . 


E. S. C. c. 129, 8. 95 . . 


. . 421 


E. S.C.C.131, 8. 12 . . 


. . 378 




. . 484 
. . 480 


, S. -1 . . 

. 8. 22 . . 



R. S. S. c. 134 
E. S. C. c. 141 
E. S. C. c. 144 



E. S. C. c. 145 



E. S. C. c. 146 



E. S. C. c. 147 



E. S. C. c. 148 



ss. 3, 4 

8. 1 

8. 1 

s. 2 
s. 1 

8.2 
8.3 
8.4 
8.5 

8. (> 
8. 7 
8. 8 

88. i, 9 

8.2 

8.3 

8.4 

8.5 

8.6 

8'. 7 

s. 8 

H. 9 

s. 1 
88. 1-3 
8. 2 
8. 4 
8.5 
8.6 
8.8 
8. 9 

s. 10 

8. 11 
8. 12 
8.13 
8. 14 

8. 1 
8. 2 
8.3 
8.4 
8.5 
8.6 
8.8 
8.9 
8. 10 



54, 



PAGE. 

Ill 

138 

11 

13 

48 

48 

48 

49 

49 

49 

50 

50 
54 
54 

57 
60 
61 
61 
56 
56 
56 
55,56 
71 
71 
192 
71 
74 
74 
74 
74 
72 
72 
69 
70 
70 
68 
77 
77 
77 
78 
78 
78 
79 
79 
77 
80 



CANADIAN STATUTES. 



XXIX 



R. S. C. c. 149 



R. S. C. c. 150 



11. S. C. c. 151 



R. S. C. c. 152 



R. S. C. c. 153 



R. S. C. c. 154 



R.S.C.C. 155 



8. 1 

s. 2 

8.4 
8. G 

8. 2 
8.3 
8.4 
8. 5 

s. 14 
s. 1 

8.5 
8.0 

s. 13 

8.14 
8. 15 

s. 21 

8. 1 
8.4 
8. 5 

s. G 

8. 1 

s. 2 
s. 3 

8.4 
8.5 
8.9 

8.1 
8.2 
8.3 

s. 5 

8.1 
8.2 

s. 3 

8.4 

1.5 
s. 6 

8.7 
8.8 



PAGE. 

80 

80 

80 

80 

80 

75 

57 

75 

7G 

7() 

14 

8G 

84, 85 

84 

84 

85 

85 

85 

84, 85 

80 

80 

24G 

81 

81 

6G 

GG 

GG 

G7 

G7 

G7 

G8 

13G 

13G 

14, 13G 

137 

134 

142 

142, 143 

144 

145 

145 

145 

145 

146 

145 



R. S. C. c. 155, 8. 



R. S. C. c. 15G 
R. S. C. c. 157 



-, s. 

8. 



145 



R. S. C. c. 158 



R. S. C. c. 159 



R. S. C. c. IGO, 



R. S. C. c. 161 



R. S. C. c. 162 



9 

10 

ll 



1 

2 

3 
4 
5 
6(3) 

7 
8 

4 
6 
7 
8 
1 

o 

3 

4 
5 
6 

7 
8 
9 

1 

o 



8. 
8. 
8. 
8. 
8. 
8. 
8. 
S. 
8. 
8. 
8. 
8. 
S. 
8. 

s. 3 
s. 6 

8.1 
8.2 

8. 3 
8.4 

8.1 

8.2 

s. 3 

8.4 
8.5 

s. 8 

88. 8-1 

s. 9 
s. 10 



PAGE. 
146 
147 
147 
1.59 
161 
161 
161, 242 
165 
166 
166 
165 
167 
187 
175 
175 
177 
178 
175 
183 
182 
182 
182 
182 
182 
183 
183 
179 
178 
178 
178 
178 
255 
256 
256 
40, 253 
226 
226 
225 
227 
2:^7 
225 
226 
226 
227 
227 



XXX 



CANADIAN STATUTES. 



K. S. C. c. 102 



R. S. C. c. 163 



8.11 . 

s. 12 . 

8.13 . 

8.14 . 

8.15 . 
s. 1(> . 

8.17 . 

8.18 . 
8. 19 . 
8. 20 . 

8.21 . 

8.22 . 

8.23 . 
8. 24 . 
8.25 . 
s. 2(3 . 
8. 27 . 
8.28 . 
8. 29 . 

8.30 . 

8.31 . 

8.32 . 

8.33 . 

8.34 . 

8.35 . 

8.36 . 

8.37 . 

8.38 . 
8. 39 . 

8.40 . 

8.41 . 

8.42 . 

8.43 . 
s. 44 . 

8.45 . 

8.46 . 
B.47 . 
8.48 . 
8. 49 . 

• • • 

8. 1 . 

8. 2 . 

8. 3 . 

s. 4 . 

8. 5 . 



PAOE. 

220, 227 
227 
230 
230 
232 
232 
232 
233 
238 
261 
233 
234 
234 
234 
235 
235 
236 
236 
237 
237 
238 
238 
239 
243 
243 
247 
250 
242 
250 
251 

242,251 
256 
257 
258 
259 
246 
251 
252 
228 
274 
274 
275 
275 
267 
266 



K. S. C. c. 1(53, 



R. S. C. c. 164 



8. 6 

8. 7 
8. 8 

8. 2 



149, 



8. 4 
s. 5 . 320, 
330, 331 
8. 6 
8. 7 
s. 8 
8. 9 
8. 10 

8. 11 
8. 12 
8. 13 
8. 14 

s. 15 
8. 16 

8. 17 
8. 18 
8. 19 

8. 20 

8. 21 

8. 22 
8. 23 
8. 24 
8. 25 
8. 26 
8. 27 
8. 28 
8. 29 
8. 30 
8. 31 
8. 32 
8. 33 
8. 34 
8. 35 
8. 36 
8. 37 
8. 38 
s. 39 
s. 40 
8. 41 



4. 



PAGE. 

. 271 
. 271 
. 271 
. 297 

316, 321 

322, 327 
. 297 

328, 329 

332, 354 
. 320 
. 327 
. 327 

286, 327 
. 328 
. 328 
. 321 
. 322 

149, 322 
. 323 
. 326 
. 329 
. 329 
. 330 

329, 330 
. 331 
. 332 
. 332 
. 333 
. 333 
. 355 
. 355 
. 355 
. 356 
. 334 
. 354 

313,334 
. 313 
. 313 

317,318 
. 316 

317,318 
. 317 
. 318 
. 318 
. 318 



CANADIAN STATUTES. 



XXXI 



R. S. C. c. 164, 8. 42 
8. 43 
s. 44 
P. 45 
8. 46 
8. 47 
8. 48 
8. 49 
8. 50 
8. 51 
8. 52 
8. 53 
8. 54 
s. 55 
8. 56 
8. 57 
8. 58 



8. 59 . 
8. 60 . 
8. 61 . 
8. 62 . 
8. 63 , 
8. 64 
8. 65 . 
B. 66 
8. 67 
8. 68 
B- 69 
8. 70 
8. 71 
8. 72 
8. 73 
8. 74 
8. 75 
8. 76 
8. 77 
8. 78 
8. 79 
8. 80 
8 81 
8. 82 
8. 83 
8. 84 
s. 85 



I'AOB. I 

. 318 
. 319 
. 319 
. 336 
. 335 
. 335 
. 335 
. 336 
. 334 
. 337 
305, 311, 337 
. 338 
. 338 
149, bC9 
326 
340 
297, 298, 306 
381 
, 339 
372,373 
, 373 
. 374 
, 375, 376 
375, 376 
. 376 
. 378 
. 378 
. 378 
. 378 
. 378 
339,379 
149, 339 
. 356 
. 357 
. 358 
. 358 
341, 347, 350 
. 341 
. 350 
. 349 
. 349 
. 381 
. 382 
. 382 
, 288, 320 



It. S. C. c. 164 



R. S. C. c. 165 



8. 86 
8. 87 
8. 88 
8. «9 
8. 90 
8. 91 
8. 92 
8. 93 
s. 94 
8. 95 
8. 96 
8. 97 
8. 98 

8. 1 
8.2 
8.3 
8.4 
8.5 
8.6 
8. 7 
8.8 
8.9 

s. 10 

8.11 

8.12 
8.13 
8.14 
8.15 
8.16 
8.17 
8.18 
8.19 

8.20 

8.21 

8.22 
8.23 
p. 24 
8.25 
8.26 
8.27 
8.28 
8.29 
8.30 
8.31 



PAGE. 

. 321 

. 331 

. 340 

. 150 

. 151 

149, 360 

. 362 

. 362 

. 362 

149, 362 

. 360 

149,362 

. 337 

384, 400 

. 393 
4 

. 384 

. 393 

. 394 

. 408 

. 405 

. 395 

. 395 

. 396 

. S96 

. 397 

. 399 

. 414 

, 414, 415 

. 415 

. 401 

. 400 

. 411 

. 411 

. 413 

. 412 

. 412 

. 411 

. 403 

. 400 

. 400 

. 400 

. 400 

. 409 

. 409 



xxxu 



CANADIAN STATUTES. 



R. S. C. c. 1G5, s. 32 

, 8. 33 

, s. 34 

, 8. 35 

, H. 3() 

, s. 37 

, H. 38 

, 8. 39 

, s. 40 

, s. 41 

, a. 42 

, 8. 43 

, 8. 44 

, s. 45 

. 8. 46 

, 8. 47 

, 8. 48 

, 8. 49 

, 8. 50 



R. S. C. c. 166 
R. S. C. c. 167 



8. 1 
s. 2 
8. 3 

8.4 

8.5 

8.6 

8.7 

8.8 

8.9 

8. 10 

8.11 

s. 12 

8. 13 
8. 14 
8. 15 
8. 16 
8. 17 
8.18 
8.19 

8. 20 
s. 21 
8.22 
8.23 
8.24 



;8, 



PAGE. 

. 402 

. 409 

. 406 

. 406 

. 406 

. 407 

. 404 

. 405 

. 405 

. 408 

. 408 

397, 398 

. 398 

. 410 

. 416 

. 400 

. 400 

. 400 

. 416 

. 422 

. 437 

. 437 
4 

. 438 

. 438 

. 441 

. 442 

. 439 

. 439 

. 439 

. 443 

. 443 

. 443 

. 444 

. 443 

439, 441 

. 443 

. 442 

. 444 

. 445 

. 445 

. 445 

. 445 

. 445 

. 440 



R. S. r. c. 167, 



R. S. C. c. 168 





I'AOE. 


8. 25 . . 


. 441 


8. 26 . . 


. . 441 


8. 27 . . 


. . 446 


8. 28 . . 


. . 439 


8. 33 . . 


. . 444 


.... 


. . 449 


s. 1 . . 


. . 3 


8. 2 . . 


. . 449 


8. :•. . . 


. . 449 


8. 4 . . 


. . 449 


s. 5 . . 


. . 450 


8. 6 . . 


. . 453 


8. 7 . . 


. . 450 


S. 8 ; . 


. . 450 


8. 9 . . 


. . 451 


8. 10 . . 


. . 452 


8. 11 . . 


. . 451 


8. 12 . . 


. . 451 


s. 13 . . 


. 456 


8. 14 . . 


457, 458 


s. 15 . . 


. . 475 


8. 16 . . 


457, 458 


8. 17 . . 


. . 458 


s. 18 . . 


. 451 


8. 19 . . 


. . 450 


8. 20 . . 


. 452 


s. 21 . . 


. 469 


s. 22 . , 


. 469 


8. 23 . . 


. 469 


8. 24 . . 


. . 470 


8. 25 . . 


. 470 


8. 26 . . . 


. 471 


8. 27 . . 


. 472 


8. 28 . . 


. 450 


8. 29 . . . 


. 452 


8. 30 . . . 


. 458 


8. 31 . . . 


. 459 


8. 32 . . 


. 460 


s. 33 . . 


. 460 


s. 34 . . . 


. 462 


s. 35 . . . 


. 461 


8. 36 . . . 


. 473 


8. 37 . . . 


. 463 


s. 38 . . . 


. 463 


s. 39 . . . 


. 464 



CANADIAN STATUTES, 





XXXXll 


. 


I'AOE. 


,8.4 . . 


. . 314 


8. f) . . 


. . 314 


8. 6 . . 


. . 315 


8. 7 . . 


. . 227 


8. 8 . . 


. 453, 468 


8. 9 . . 


. . 486 


8. 10 . . 


. . 486 


8. 12 . . 


. . 484 


8. 13 . . 


. . 481 


8. 14 . . 


. . 487 


8. 15 . . 


. . 482 


8. 16 . . 


. . 483 


8. 17 . . 


. . 483 


8. 18 . . 


. . 482 


8. 19 . . 


. . 483 


8. 20 . . 


. . 118 


s. 21 . . 


. . 118 


s. 22 . . 


. . 119 


8.23 . . 


. . 119 


8. 24 . . 


. . 118 


s. 25 . . 


. . 115 


s. 26 . 26 


139, 370 


s. 27 . . 


. . 359 


8. 28 . . 


. . 359 


s. 29 . . 


. . 113 


8. 30 . . 


124, 125 


8. 31 . . 


. . 150 


8. 2 . . 


. 1,2 


8. 8 . . 


9, 102 


ss. 30-50 . 


. 273 


ss. 57-91 . 


. 273 


B. 183 . . 


. 242 


s. 187 . . 


. . 22 


8. 226 . . 


. 248 


8S. 3-11 . 


. 188 


ss. 10-11 . 


. . 26 


88. 14-15 . 


. 27 


88. 4, 10, 11 


2 


8. 5 . . . 


1 


8.1 . . . 


. 431 


8. 1 . . . 


. 14 


8.2 . . . 


. 14 


8.3 . . . 


. 14 


8. 4-22 . . 


. 15 


8.5 . . . 


15,59 


8. 6 . . . 


15, 225 



R. S. C. c. 108 



E. S. C. c. 169 



R. S. C. c. 171 



R. S. C. c. 172 



R. S. C. c. 173 





PACIE. 


8. 40 . 


. . . 465 


8. 41 . 


. . . 466 


8.42 . 1 


49, 454, 47:5 


8. 43 . 


. . . 4G7 


8.44 . 


. . . 467 


8.45 . 


. . . 468 


8. 46 . 


. . . 4.54 


8.47 . 


. . . 454 


8.48 . 


. . . 454 


8.49 . 


. . . 455 


8. 50 . 


. . . 4.55 


8.51 . 


. . . 455 


8.52 . 


. . . 455 


8.53 . 


. . . 455 


8.54 . 


. . . 461 


s. 55 . 


. . . 474 


8.56 . 


. . . 471 


8.57 . 


. . . 472 


8. 58 . 


. 4(17, 475 


8.59 . 


. .47.5,476 


8. GO . 


. . . 449 


s. 01 . 


. . . 449 


8. 1 . 


. . . 64 


s. 2 . 


. . . 366 


s. 3 . 


. . . 367 


8.4 14, 


64, 360, 367 


8. 7 . 


. . 64 


s. 1 . 


367, 368 


8.2 . 


. . 367 


8. 3 . 


. 4, 368 


8. 4 . . 


. . 14 


8. 1 . 


O 


8. 2 . . 


. . 477 


s. 3 . . 


. . 477 


8. 6 . . 


. . 477 


s. 8 . . 


. . 478 


8. 9 . . 


. . 478 


8. 10 . . 


. . 478 


8. 11 . . 


, . 478 


s. 12 . . 


. . 479 


8. 13 . . 


. . 478 


8. 14 . . 


. . 149 


s. 1 . . 


. . 314 


8. 2 . . 


. . 315 


8. 3 . . 


314, 315 



R. 8. C.c. 173, 8. 4 



R. S. C. c. 174 



R.S.C. C.176 



R. S. C. c. 177 
R. S.C.C.178 

R. S. C. c. 180 
R. S. C. c. 181 



XXXIV 



CANADFAN STATUTES. 



R. S. C. c. 181, 8. 10 
8.18 
8. 19 
8.24 



li. S. C. c. 1«2 
R.S.C.C.183 



8.25 . 

8. 20 . 

8.27 . 

8.28 . 

8.29 . 

8.30 . 
8. 31 . 

8.32 . 

8.33 . 

8.34 . 

8.35 . 
s. 30 . 

8.37 . 

8.38 . 
8. 39 . 

8.40 . 

8.41 . 

8.42 . 
8.50 . 
S8. 25-58 
88. 61-74 
8.6 . 

66. . 



R. S. C. c. 184 

43 Vict. c. 28,8 

45 Vict. (Ont.) c. 9 

50 Vict. (Man.)c. 22 

50 & 51 Vict. c. 25 

50 & 51 Vict. c. 33, es. 3, ^ 

,8. 10 

, s. 11 

50 & 51 Vict. c. 45, s. 2 

,8.4 

, 8. 5 

, s. 6 

,8.7 

, 3. 8 

, 8. 9 

, 8. 11 

, 8. 12 

. 8. 14 



50 & 51 Vict. c. 46, 8. 1 



TAGH. 

. . 59 

. . 16 

. . 139 

26, 105, 143 

144 

26 

16 

27 

10,17 

17 

18 

19 

20 

19 

15 

22 

23 

23 

29 

29 

30 

30 

31 

244 

17 

17 

113 

334 

272 

272 

27 

470 

86 

109 

,364 

363 

364 

364 

364 

364 

365 

365 

365 

14 

80 



50 & 51 Vict. c. 47, a. 1 

, 8. 2 

50&D1 Vict. (.48,88.1,0 



,8. :; 



50 it 51 Vict. c. 49, 8. 1 

51 Vict. c. 11, 8. 13 . 



51 Vict. c. 1 
51 Vict. c. 19 
51 Vict. c. 22 
51 Vict. c. 29 



51 Vict. c. 31 



51 Vict. c. 3 
51 Vict. c. 34 
51 Vict. c. 40 



51 Vict. c. 41 



51 Vict. c. 42 



51 Vict. c. 47 



8. 2 . 

8. 18 . 

8. 4 . 

8.30 . 

8. 253 . 

8. 280 . 

8. 291 . 

8. 292 . 

8. 293 . 

8. 294 . 

8. 290 . 

8. 297 . 

8. 301 . 

8.4 . 

8.6 . 
8. 10 . 

8.1 . 

8.7 . 
88. 1, 2 
88. 2, 3 



8.3 

8.4 

8.5 

8.6 

8.7 

8.8 

8.11 

8. 17 

8. 18 

8. 19 

8.20 
s. 21 
8.22 
88. 1, 
8. 1 

s. 1 

8.2 



PAGB. 

. 399 

. 415 

. 1()5 

. 166 

. 480 

. 128 

. 435 

. 86 

. 86 

. 245 

. 233 

. 113 

. 23(5 

. 236 

. 86 

. 115 

. 115 

. 465 

. 420 

. 465 

. 245 
14 

. 13 

• ^ 

. 447 

. 448 

. 422 

. 422 

, 425 

. 425 

. 429 

426,427 

. 428 

. 428 

. 424 

. 42b 

. 427 

. 431 

149, 430 

. 428 

428. 429 

. 176 

. 177 

17 

. 20 



CANADTA N ST A T UTES. 



XXXV , 



52 Vict. c. 22, 88. 3 . 
52 Vict. c. 25, S8. 3, 4 
52 Vict. c. 20, 8. 11 
52 Vict. c. 41, 8. 1 

, 8. 6 

62 Vict. c. 42 . . 
62 Vict. c. 43 . . 



PAGE. 

. 490 

. (15 

. 352 

. 481 

. 480 

, 12:5 

. 501 



52 Vict. c. 43, 8. 1 

, 8. 2 

, e. 3 

,8.4 

, 8. 7 

52 Vict. c. 44 . . 
52 Vict. c. 45, 8. 6 



I-AGB. 
501 

501 
501 
501 
501 
27 
2 



LIST OF AIVBUKVIATIONS. 



The expression "Draft Code" ineanis the Draft Code appended to th& 
Report of the Crlniiiial Code Conunission pnblisliod in 1871), and marked 
C. l.':'.45. 

The Canadian Statutes cited are designated by the letters D., P.C., etc., 
which are explained in the followin<r list, placed after the Sovereign's 
name. Tiie Statutes not so distiiiguishodare those of the realm or the 
United Kinjidoin. In the table of Canadian Statutes, those not con .aining 
distinguishing letters are Dominion Statutes. 



A. & E. . 




All. 




App. Cas. 




Arch. 




B. & Aid. 




B. &. Ad. 




B. ct B. . 




B. &. C. . 




B. & S. . 




Bell, C. C. 




Bing. 




Bish. Cr. Law. 




Brooke's Abt 




Burr. 




C.B. . 




C. B. N. S. 




C. P. 




C. P. D. . 




C. &. F. . 




C. &K. . 




C. & M. . 




C. & P. . 




C. L. J. . 




C.L. T. . 




C. S. C. . 




C. S. L. C. 





Adolphus ct Ellis. 

Allen's New Brunswick Keporis. 

Appeal C'ases. 

Archibald's Pleading and Evidence, 20th ed. 

Barnewall & Alderson. 
Barnowall & Adolplius. 
Broderip it Bingham. 
Barnewoll & Cresswell. 
Best & Smith. 
Bell's Crown Cases. 
Bingham's Reports. 
Bishop's Criminal Law. 
Brooke's Abridgment. 
Burrow's Reports. 

Common Bench Reports. 

Common Bench Reports, New Series. 

Common Pleas (Law Reports). 

Common Pleas Division. 

Clark and Finelly. 

Carrington and Kirwan. 

Carrington and Marsham. 

Carrington and Payne. 

Canadian Law .Tournal. 

Canadian Law Times. 

Consolidated Statutes of Canada. 

Consolidated Statutes of Lower Canada. 



LIST OF ABB RE VIATIONS. 



XXXVll 



< •. s. u. c;. 


Consolldateil Ktatiites of Upper ('anada. 


Ciild. , 


( 'aldecott'rt Sottloniont ( "aaes. 


( amp. . 


<'ainpl)ell'H Koports. 


( an. S. r. 


KoportH of Supremo ( 'ourt of ( 'anada. 


( ar. & Mar. . 


Carrin^;ton i*c Marsham. 


Ch. App. 


Chancery A ppealH (Law I voports). 


Ch. D. . . . 


Cluincpiry Division. 


< hit. Cr. Law. 


Cliitty's Criminal Law. 


f'o. Litt. 


Coke on Littleton. 


( 'om. Dij?. 


Corny n's Dijjest. 


<'o\vp. 


Cowpor's li(*port8. 


< "ox C. C. . . 


Cox's Criminal Cases. 


Cr. & M. 


Crompton it Meeson. 


1). ct 1'.. . 


hearsloy & Hell. . 


halt. . 


halton's Country Justices. 


hear. 


hearsley. • 


hen. 


DonieoD's Crown Cases. 


hor. Q. B. 


Dorion's Queen Uench lioports, Lower Canada. 


I >oug. 


I)ouglas. • . 


Ea. 


East's Reports. 


Ea.st, P.C. 


East's rioas of the Crown. 


E. &. B. . 


Ellis & niackburn. 


E. B.&E. 


Ellis, Blackburn & Ellis. 


Esp. 


Espinasse. 


ICx. 


Exchequer (Law Reports). 


Ex. J ). . 


Exchequer Division. 


F. & F. . 


Foster & Finlayson. 


Forsyth Con. Taw 


Forsyth's Constitutional Law. 


Foster . 


Foster's Crown Cases. 


G. &0. . 


Geldert & Oxley's Reports, Nova Scotia. 


Gen. View Cr. L. 


Stephen's General View of the Criminal Law. 


Gr. . . 


Grant's Chancery Reports, Ontario. 


H. & C. . 


Hurlstone and Coltman. 


H. & N. . 


Hurlt^tone and Norman. 


H. E. C. . 


Hodgins' Election Cases, Ontario. 


H. L. r. . 


House of Lords Cases. 


Hale, P.C. . 


Hale's Pleas of the Crown. 


Han. 


Hannay's New Brunswick Reports, 


Hawk. P.C. . 


Hawkins's Pleas of the Crown (Curwood's edition) 


Hist. Cr. Law . 


Stephen's History of the Criminal Law. 


Inst. 


Coke's Institutes. 


Ir. C. L. R. . 


Irish Common Law Reports. 



XXXVlll 1 


jltST Ur AtSHUE VlATWJSiS. 


Keb. . 


Keble's Reports. 


Kel. 


Kelyng. , v'? '■,' 


L. &C. . 


Leigh and Cave's Crown Cases. 


L. C.J. . 


Lower Canada Jurist 


L. C. L. J. 


Lower Canada Law Journal. 


L. C. R. . . . 


Lower Canada Reports. 


L. J. (M.C.) . 


Law Journal, Magistrates' Cases. 


L. J. (Q.B.) . . 


Law Journal, Queen's Bench. 


L. N. . 


Legal News, P.Q. 


Li. R. C C. R. . 


Law Reports, Crown Cases Reserved. 


L. R. C. P. . . 


Law Reports, Common Pleas. 


L. R. H. L. . 


Law Reports, English and Irish Appeals. 


L. R. P. C. . 


Law Reports, Privy Council. 


L. R. Q. B. . 


Law Reports, Queen's Bench. 


L. T. (N.S.) . 


Law Times, New Series. 


Ld. Raym. 


Lord Raymond. 


Lew. 


Le win's Crown Cases. 


M. & M. 


Moody and Malkin. ., . 


M. & Rob. . 


Moody and Robinson. ^ \ 


M. &. S. 


Maule and Selywn. , 


M. &. W. 


Messon and Welsby. 


M. L. R. 


Montreal Law Reports, Queen Bench. 


Man. L. R. . 


Manitoba Law Reports. 


Mer. 


Merivale. 


Mod. 


Modern Reports. 


Moo. 


Moody's C'rown Cases. 


Moo. & R. 


Moody & Robinson. 


Moo. Ind. App. 


Moore's Indian Appeals. 


Moo. RCC. . 


Moore's Privy Council Cases. 


N. B. R. . 


New Brunswick Reports. 


N. S. R. . 


Nova Scotia Reports. 


0. R. . 


Ontario Reports. 


Old. . . < 


» Oldwright's Reports, Nova Scotia. 


Ont. App. R. . 


Ontario Appeal Reports. 


Ont. Dig. • . 


Robinson & Joseph's Ontario Digest. 


Ont. P. R. 


Ontario Practice Reports. 


P. &B. . 


Pugsley & Burbidge's Reports, New Brunswick. 


P. D. . 


Probate Division (Law Reports.) 


P. Wm. . 


Peere Williams. 


Paley Sum. Con. 


Paley on Summary Conviction. 


Plowd. . 


Plowden. 


Pugs. 


Pugsley's Reports, New Brunswick. 



LIST OF ABBREVIATIONS. 



XXXIX 



Q. B. . 
Q. B. D. . 
Q. L. K. . 

R. & C. . 
R. &. G. . 
R. &. M. 
R. «fc E. . 
R. L. . 
R. S. C. . 
R. S. B. C. 
R. S. N. B. 
R. S. N. S. 
Rep. C. L. C. 
W. Rob. 
Roscoe, Cr. Ev 
Russ. Cr. 



S. D. 
Salk. 
Sra. L. a 
Starkie, N. 
Steph. Com. 
Stev. Dig. 
St. Tr. . 
Str. 

T. R. . 
Tasch.Can. Cr. Acts 
Taunt. . 
Tyrw. 

U. C. C. P. 
U. C. 0. S. 
U.C.Q.B. 

Ves. 

Viner's Abt. 

W. Bl. . 
Wall. Jr. 

Wms. Saun. . 



Queen's Bench Reports. 
Queen's Bench Division. 
Quebec Law Reports. 

Russell & Chesley's Reports, Nova Scotia. 
Russell & Geldert's Reports, Nova Scotia. 
Ryan & Moody. 
Russell and Ryan. 
Revue Legale, P. Q. 
Revised Statutes of Canada. 
Revised Statutes of British Columbia. 
Revised Statutes of New Brunswick. 
Revised Statutes of Nova Scotia. 
Report of the Criminal Law Commission. 
W. Robinson's Admiralty Reports. 
Roscoe's Criminal Evidence, 10th ed. 
Russell on Crimes, 5th edition. 4th edition in 
Appendix. 

Stephen's Digest of Criminal Law. 

Salkeld's Reports. 

Smith's Leadinr Cases, 9th edition. 

Starkie's Nisi Prius Reports. 

Stephen's Commentaries. 

Steven's Digest of New Brunswick Reports. 

State Trials. 

Strange's Reports. 

Term Reports. 

Taschereau's Canadian Criminal Acts, 2nd edition. 

Taunton's Reports. 

Tyrwhitt. 

Upper Canada Common Pleas. 
Upper Canada Reports, Old Series. 
Upper Canada Queen's Bench. 

Vesey's Reports. 
Viner's Abridgment. 

William Blackstone's Reports. 

Wallace Junior's United States Circuit Court 

Reports. 
William's Saunders Reports. 



CONTENTS. 



PART ' PAGE 

I. I'RELIMINARY • 1 

II. Offences against Pur.Lic Order— Internal and External . 54 

III. Abushjs and Obstructions of Public Authority .... 109 

IV. Acts injurious to t:ie Public in General 152 

V. Offences against tub Person, the Conjugal and Parental 

Eights, and the Reputation of Individuals . . . 190 
VI. Offences against Rights op Property and Rights arising out 

of Contracts 276 



PAET I. 
PRELTMIIS^AEY, 



Explanation of Terms . " . . . . . , . . 1 

CHAPTER I > 

OF THE APPLICATION OF THE CRIMINAL LAW. 

art. page 

1. Application of the Criminal Law 9 

2. Application of the Law of England 9 

CHAPTER II. 
OF PUNISHMENTS. 

3. Punishment after Conviction only 14 

4. Discretion of the Court . .14 

5. Offender punishable under two or more Provisions ... 14 

6. Enumeration of Punishments 15 

7. Punishment of Death _ . .15 

8. Punishment of Imprisonment 15 

9. Hard Labor 10 

10. Reformatories 17 

11. Whipping 18 



CONTENTS. xli 



ART. PAGE 

12. Fine 19 

13. Putting under Recognizances 19 

CHAPTER III. 

CLASSIFICATION OF CRTMES AND GENERAL PROVISIONS AS 
TO THEIR PUNISHMENT— PARDONS dc 

14. Treason, Felony and Misdemeanor 21 

15. Consequences of a Conviction of Treason or Felony in certain 

Provinces 21 

16. Consequences of a Conviction of Treason or Felony in Manitoba 

and the North- West Territories 24 

17. Imprisonment where there is no Express Provision ... 26 

18. Previous Convictions 26 

10. Cumulative Punishments . .27 

20. Conditional Release of first Offenders 27 

21. Pardons 29 

22. Commutation of Sentence 30 

2?u Undergoing Sentence equivalent to a Pardon .... 30 

CH AFTER IV. 
GENERAL EXCEPTIONS. 

24. Definition subject to exceptions 32 

25. Children under Seven 32 

26. Children between Seven and Fourteen 32 

27. Insanity 32 

28. Presumption of Sanity 34 

29. Drunkenness 34 

30. Married Women 35 

31. Compulsion 36 

32. Necessity . 36 

33. Ignorance of Law 38 

o4. Ignorance of Fact 39 

CHAPTER Y. 

PARTIES TO THE COMMISSION OF CRIME— PRINCIPAL 
AND ACCESSORY. 

3o. Principals in First Degree . . . . . . . .42 

36. Innocent Agent • . 42 

37. Principals in the Second Degree 48 

38. Common Purpose . . . 44 

39. Accessories before the Fact 45 

40. Where Crime suggested is committed in a different Way . . 46 



xlii CONTENTS. 



ART. PAGE 

41. Where Crime committed is probable Consequence of Crime 

suggested 46 

42. Where Instigation is countermanded 47 

43. Instigation to commit a Crime different from the one committed. 47 

44. Accessories and Principals in Second Degree treated as Principals 

in First Degree .48 

45. Accessories after the Fact 48 

46. Punishment of Accessories after the Fact 49 

47. Where Principal Felon has been Convicted but not Attainted . 49' 

48. Misdemeanors 50 

49. Offences punishable on Summary Conviction .... 50 

CHAPTER VI. 

DEGREES IN THE COMMISSION OF CRIME— INCITEMENT 
—CONSPIRACY— ATTEMPTS. 

50. Incitement to commit a Crime 51 

51. Conspiracy to commit a Crime 51 

52. Definition of Attempts 51 

53. Attempt — Misdemeanor . . 53^ 



PAET II. 

OFFENCES AGAINST PUBLIC ORDEE— INTEEN L AND 

EXTERNAL. 



CHAPTER VII. 

HIGH TREASON, TREASONABLE FELONIES, ASSAULTS ON THE 
QUEEN, AND OTHER OFFENCES AGAINST THE QUEEN'S 

AUTHORITY. 

54. High Treason by imagining the Queen's Death .... 54 

55. What amounts to imagining the Queen's Death ... 55 

56. High Treason by levying War 55 

57. Levying War by Subjects of a State at Peace with Her Majesty 

— Subjects assisting 56 

58. High Treason by adhering to the Queen's Enemies . . .57 

59. Adherence to a de facto King not Treason 58 

60. Killinga King's Wife or Son" 58 

61. When Words are Treason 58 

62. Violating the King's Wife, &c .59 



CONTENTS. xliir 



ART. PAGB 

63. Punishment for Treason . . . . , . .50 

64. All Principals in Treason ......... 60 

65. Treasonable Felonies 60 

66. Conspiracy to Intimidate a I'rovincial Legislature ... 61 

67. Assaults on the Queen .61 

68. Contempts against the Queen 62' 

69. Solemnising or Assisting at Marriage of a Member of the Royal 

Family 63 

70. Inciting to Mutiny 68 

71. Enticing Soldiers or Sailors to Desert 64 

72. Resisting Execution of Warrant for Arrest of Deserters . . 64 

73. Enticing Militiamen or Members of the North- West Mounted 

Police Force to desert . . . . . . . .66- 

CH AFTER VIII. 

CHALLENGES, PRIZE FIGHTING, AFFRAYS, UNLAWFUL AS- 
SEMBLIES, ROUTS, RIOTS, UNLAWFUL DRILLING, FOR- 
CIBLE ENTRY AND DETAINER, UNLAWFUL POSSESSION 
AND USE OF EXPLOSIVE SUBSTANCES AND OFFENSIVE 
WEAPONS, PRESERVATION OF THE PEACE AT PUBLIC 
MEETINGS AND ELECTIONS AND NEAR PUBLIC WORKS, 
UNLA WFUL SALE OF SPIRITUOUS LIQUORS. 



r 



74. Sending Challenges and Provoking to Fight . . . .66 

75. Definition 66 

76. Clialienging to Fight a Prize Fight — Accepting — Training 

Therefor 66^ 

77. Engaging as Principal in a Prize Fight 67 

78. Attending or Promoting a Prize Fight 67 

79. Leaving Canada to Engage in a Prize Fight 67 

80. Where the Fight is Not a Prize Fight— Discharge or Fine . . 68 

81. Aftray 68- 

82. Unlawful Assembly 69' 

83. Routs 70 

84. Riots 7a 

85. Preventing Reading Proclamation and Continuing to Riot After 

Proclamation 71 

86. Riotous Demolition of Houses, «&c 72 

87. Riotous Damage of Houses, <kc 72 

88. Inciting Indians to Riotous Acts 73 

89. Forcible entry and Detainer 73 

90. Unlawful Drilling 74 

91. Definitions 76 

92. Causing Dangerous Explosions 75 



xliv 



CONTENTS. 



any 



ns so 



ART. 

93. Doing Anything, or Possessing Explosive Substances, with 

Intent to cause Dangerous Explosions 

94. Unlawfully Making or Possessing Explosive Substances 

95. Carrying Pistol without Reasonable Cause . 

96. Having a Pistol on Person when Arrested . 

97. Having a Pistol on the Person with Intent to Injure 

Person 

98. Pointing any Firearm at any Person . 

99. Carrying Ottensive Weapons about the Person . 

100. Carrying Sheath-knives in Seaports . 

101. Going Armed so as to Cause Fear 

102. Two or more Persons openly carrying Dangerous Weapo 

as to Cause Alarm 

lOo. Exception as to Soldiers, &c 

104. Having Possession of Arms for Purposes Dangerous to the 

Public Peace . . 

105. Refusing to deliver Offensive Weapon to a .Justice 
100. Coming Armed Within Two Miles of Public Meeting 

107. Lying In Wait for Persons Returning from Public Meeting 

108. Refusing to Deliver Offensive Weapons to Returning Officer 

109. Coming Armed Into Polling District, or Within One Mile of 

Polling Place 

110. Smugglers Carrying Offensive Weapons 

111. Sale of Arms in the North- West Territories 

112. Possessing Weapons near Public Works 

113. Sale, &c., of Liquors near Public Works 

114. Intoxicating Liquors on board Her Majesty's Ships 



PAGE 

76 

76 

77 
77 

78 
78 
78 
79 
79 

79 

80 

80 

80 
81 
81 
82 

82 
83 
83 
84 
85 
86 



CHAPTER IX. 

OFFENCES AGAINST INTERNAL TRANQUILLITY BY 

UNLA WFUL ENG .1 QEMENTS AND COMBINA TIONS 

AND CONFEDERACIES. 

115. Unlawful Oaths 87 

116. Compulsion, How Far a Defence 88 

117. Unlawful Societies 88 

118. Freemason's Exempted . . 90 

119. Punishment of Members 90 

120. Permitting Meetings of Unlawful Societies .... 90 

121. Seditious Words and Libels .91 

122. Seditious Conspiracy . . . 91 

123. Seditious Intention Defined 92 

124. Presumption as to Intention 93 

125. Spreading False News 93 



CONTENTS. xlv 



CHAFrKR X. 

OFFENCES AGAINST EXTERNAL PUBLIC TRANQUILLITY, 
OFFENCES AGAINST FOREIGN NATIONS. 

ART. TACB) 

126. Violation of Ambassador's Privilege^ 94 

127. Arrest of Ambassador 94 

128. Libels on Foreign Powers 95 

129. Interference in Foreign Hostilities 95 

130. Ships, &.Q., Ifeferred to in Article 129 to be Forfeited — 

Definitions 97 

131. Increasing Force of Ships for Foreign Belligerents, and Pro- 

curing Enlistment by Misrepresentation .... 99 

132. Presumption of Knowledge of Purpose for Avhich Ship is Built 99 

CHAPTER XI. 

OFFENCES AGAINST PERSONS ON THE HIGH SEAS— PIRACY 

—SLA VE- TRADING. 

133. Piracy 101 

134. Piracy with Violence 102 

135. Committing Acts of Hostility under Foreign Commission . 102 

136. Adhering on the Sea to the Queen's Enemies .... 102 

137. Boarding Sliips and Throwing Cargo Overboard . . . 103 

138. Masters and Seamen Favoring Pirates 103 

139. Trading with Pirates and Conspiring with Them . ' . . 104 

140. Punishment for Statutory Piracies 104 

141. Not Fighting Pirates 105 

142. Slave- trading Defined 105 

143. Piratical Slave-trading 106 

144. Punishment of Slave-trading 107 

145. Serving on a Slave Ship, Felony 108 

146. Serving on a Slave Ship, Misdemeanor 108 

PAET III. 
ABUSES AND OBSTEUCTIONS OF PUBLIC AUTHOEITY. 



CHAPTER XII. 

ABUSES OF AUTHORITY, OPPRESSION, EXTORTION, FRAUD, 
NEGLECT OF DUTY— REFUSAL TO ACT. 

147. "Public Officer "defined 109 

148. Extortion and Oppression by Public Officers . . . .110 

149. Frauds and Breaches of Trust by Officers Ill 

150. Neglect of Ofiicial Duty 112 



xlvi COI^TENTS. 



ART. PAGH 

151. Misconduct of Oflicers Intrusted with Execution of Writs . . 113 

152. Refusal to Strve an Office 114 

CHAPTER XIII. 

DISOBEDIENCE TO LA WFUL ORDERS. 

153. Disobedience to a Statute 115 

154. Disobedience to Lawful Orders of Court, &c 116 

CHAPTER XIV. 
BRIBERY AND CORRUPTION— SALE OF OFFICES. 

155. Judicial Corruption 117 

156. Corruption of Public Officers 117 

157. Corruption in respect to Contracts with the Government . . 118 

158. Corruption in respect to Business with the Government . . 119 

159. Other Consequences of Conviction for any such Oflfence . .119 

160. Revenue Oflicers committing Corrupt Acts ll'O 

161. Corruption of Revenue Officers 121 

162. Customs Officers committing Corrupt Acts 122 

163. Corruption of Customs Officers . 122 

164. Corrupt Practices in Municipal AflFairs 123 

165. Embracery 124 

166. Definition of Bribery of Voters 125 

167. Definition of Undue Influence 126 

168. Definition of Treating 127 

169. Punishment of Bribery, Undue lofluence and Treating . . 127 

170. Personation at Elections 129 

171. Forgery of Ballot Papers, and other Offences respecting the same 130 

172. Definition of Office 131 

173. Selling Offices 131 

174. Making Interest for Offices for Reward . . . . .132 

CHAPTER XV. 

MISLEADING JUSTICE— PERJURY— FALSE SWEARING— SUB- 
ORNATION— ADMINISTERING EXTRA JUDICIAL OATHS 
—FALSE CERTIFICATE AS TO EXECUTION. 

175. Perjury Defined 133 

176. Subornation of Perjury 135 

177. Punishment of Perjury and Subornation 136 

178. False Swearing 136 

179. False Statements —Wilful Omissions in Affidavits, &c. . . 136 

180. Making False Affidavit out of Province in which it is used . 137 

181. Administering Oaths without Authority 138 

182. Maintenance 138 



CONTENTS. xlvii 



ART. PAGE 

183. Conspiracy to Defeat Justice — Dissuading Witnesses from 

Testifying i;59 

184. Signing False Declaration respecting Execution of Judgment of 

Death 139 

CHAPTER XVI. 

ESCAPE — RESCUE — PRISON BREA CH — MISPRISIONS — COM- 
POUNDING OFFENCES— TAKING OR ADVERTISING 
REWARDS FOR RECOVERY OF STOLEN 
PROPERTY. 

185. Voluntary Permission by Oflicers of Escapes by Prisoners . 141 

186. Negligent Permission by Officers of Escapes by Prisoners . 141 

187. Kescue Defined 142 

188. Quality of Offence of Rescue 142 

189. Felonious Rescues — Punishment 142 

190. Rescuing Murderers 143 

191. Breaking Prison 143 

192. Punishment of Certain Escapes, Rescues, <fcc 144 

193. Assisting Escape of Prisoners of War 144 

194. Unlawfully Directing or Procuring Discharge of Prisoner . 145 

195. Escaping, «&(;. , from a Penitentiary 145 

19ti. Keepers, &c., Carelessly Allowing Prisoners to Escape from a 

Penitentiary 146 

197. Escaping, &c., from a Reformatory 146 

198. Punisiiment of Prisoners who Escape 147 

199. Transports or Persons Sentenced to Penal Servitude being at 

large 147 

200. Misprision of Treason 148 

201. Misprision of Felony 148 

202. Agreement not to Prosecute 149 

203. Compounding Penal Actions . . . . . . . 150 

204. Corruptly Taking a Reward for Helping to Recover Stolen Pro- 

perty without Using Diligence to bring Offender to Trial . 150 

205. Unlawfully Advertising a Reward for Return of Stolen Property 151 



PART IV. 
ACTS INJURIOUS TO THE PUBLIC IN GENERAL. 



CHAPTER XVII. 

UNDEFINED MISDEMEANORS. 

206. Acts Involving Public Mischief . . . . . . .152 



xlviii CONTENTS. 



CIIAITER XVIII. 
OFFENCES AGAINST RELIQION. 

ART. PAGB 

207. Blasphemy Defined — Alternato Definitions 

208. Denying Trntli of Cliristianity, &c 

209. Depraving the Lord's Supper 

210. Depraving the Book of Common Prayer 

211. Clergymen Refusing to Use the Book of Common Prayer 

212. Disturhing Public Worship 



154 
155 
156 
157 
158 
159 



CHAPTER XIX. 
OFFENCES AGAINST MORALITY. 

213. Sodomy 161 

214. Attempt to Commit Sodomy . 161 

215. Incest 101 

210. Adultery 102 

217. Public Indecencies 162 

218. Obscene Publications 103 

219. Posting Immoral Books, &c 105 

220. Seiluction of Girls under Sixteen — Carnally knowing Idiots . 165 

221. Seduction under Promise of Marriage 106 

222. Householders Permitting Defilement of Girls on their Premises 100 

223. Unlawfully Defiling Women 107 

224. Conspiracy to Defile 167 

225. Seduction of Females who are Passengera on Vessels . .168 
220. Prevention of Immoral Intercourse with Female Immigrants . 108 

227. Prostitution of Indian Women 109 

228. Preventing the Burial of Dead Bodies and Disinterring them . 170 

CHAPTER XX. 

COMMON NUISANCES— DISORDERL Y HO USES— GAMING 

—LOTTERIES. 

229. Common Nuisance . 172 

230. Common Nuisance a Misdemeanor 173 

231. Keeping Disorderly Houses 173 

232. Disorderly Houses 174 

233. Common Bawdy Houses 174 

234. Common Gaming Houses 174 

235. Evidence that a House is a Common Gaming House . . 175 

236. Gaming in Stocks and Merchandise 176 

237. Habitually Frequenting places where Gaming in Stocks is 

carried on 117 

238. Playing or Looking on in Gaming House .... 177 

239. Obstructing Peace Oflicers entering a Gaming House . . 178 



CONTENTS. 



xlix 



A in". vAc.u 
L'40. Gamblins? in Public Conveyances • ... . .178 

•J41. Bettinuj and Tool Soiling 179 

l.'42. Disorderly PliU'os of Entortninnient 180 

243. Disorderly Inns 181 

L'44. Lotteries 18[ 

245. Nuisances to Health, Life, and Property 183 

246. Nuisances by OlFensive Trades 185 

247. Nuisances to Ilijjliways 185 

248. Nuisances to Bridges 186 

249. Nuisances to Navigable Rivers 180 

CHAPTER XXL 

VAGRANCY-LOITERING NEAR SHIPS. 

250. Idle and Disorderly Persons 187 

251. Loitering near Ships 189 



PART V. 

OFFENCES AGAINST THF^] PERSON, THE CONJUGAL 
AND PARENTAL RIGHTS, AND THE REPUTATION 
OP INDIVIDUALS. 



CHAPTER XXn. 

CASES IN WHICH INFLICTION OF BODILY INJURY IS 

NOT CRIMINAL. 

252. Excettions to Rest of Part V igQ 

253. Execui ion of Lawful Sentences 191 

254. Supprei sion of Riots 192 

255. Prevention of the Commis^^sion of Oimes and Arrest of Criminals 192 

256. Private Defence 193 

257. Lawful Force 19(3 

258. Superior Orders to employ Force 19(3 

259. Consent to Bodily Injury 19g 

260. Right to consent to Bodily Injury for Surgical Purposes . . 198 
2GL Surgical Operation on Person incapable of Assent . . . 199 
262. Right to consent to Bodily Injury short of Maim . . , 199 
26a. No Right to consent to Infliction of Death .... 200 

264. No Right to consent to Injury constituting a Breach of the Peace. 200 

265. Consent to be put in Danger 201 

D 



CONTEXTS. 



ART. I'AGi: 

200. Ac(,'i(lental Inllu'tion of Bodily Injury by Lawful Act — What 

Acts aro lawful 201 

CHAlTKll XXTIT. 

OF CVLPAliLK NEGUOENCE AND OP DUTIES TENDING TO 
THE I'RESERVATION OF LIEK. 

207. Death or Bodily Injury caused by Omission to discharge a 

Legal Duty 20:'. 

208. Causing i'oalii by Umisaions otiier tlian tlioso mentioned in 

Article 2()7 

201). IHity to provide Necessaries of liifo 

270. Delegation of l>uty dulincd in Article L'Od . 

271. \Vhen direct rorlbrmance of Duty impossible 

272. Duty of Care in doing Dangerous A(;ls 

273. Duty of Persons doing Acts requiring Special Skill or Know- 

ledge 208 

CIIAl'TER XXIV. 
HOMICIDE. 

274. Homicide defined— When a Child becomes a Human I'eing . 20!) 

275. Killing defined £0!> 

276. When an Act is the remote ( ause of I )eath or one of several 

Causes 211 

277. When causing Death does not amount to Homicide ... .213 

278. When Homicide is unlawful 2ir» 

CHAITER XXV. 

MURDER— MANSLAUGHTER— ATTEMPTS TO COMMIT MURDER 
— CONCEALMENT OF BIH TH. 

279. Manslaughter and Murder defined 210 

280. Effect and Definition of Provocation . . .' . . .219 

281. When Provocation does not extenuate Homicide . . . 222 

282. Provocation to Third Person 223 

283. Suicide— Abetting Suicide 224 

284. Manslaughter on Oneself 224 

285. Accessories before the fact in Manslaughter .... 224 

286. Presumption that Killing is Murder 225 

287. Punishment of Murder 225 

288. Punishment of Manslaughter 225 

289. Attempts to commit Murder 226 

290. Accessory after the fact to Murder 227 

291. Threats and Conspiracies to Murder 227 

292. Concealing the Birth of Children 228 



CONTENTS. li 



(HA ITER XXVI. 

BODTLV TKJVniES, AND ACTS AND OMISSfONS CAUSING 
DANGER TO THK PERSON. 

AltT. I'ACiK 

2'.>3. W(nin(liii« with Intent i • 230 

•_'i)4. Wonniliiiu "... 

l.".!"). Shooting' at Her Majesty's Wsselis — Woiimling Custonis or In 

hind Ki'venue Ollicors 

'JDG. I)i.subliu>i or Adniinistorin}; J)ni<i;8 vith intent to counnit an in 

diottiblo Ollbnco 

L'OT. Administeriiij? Poison bo as to p]niianj;i'.r lilo 

'JOS. AdniiiiistiMiiig I'oison with intont to Injure 

l.".»9. Causinj; JJodily injurias by Kxplosivos .... 

:;0{). Altemjjtinf,' to canso I'xkUIv injuries by Explosives. . 

;!01. Settin^i Spring-^runs and iMan-traps . . . . 

;!0l.'. Intentionally endan}j;i'rin<: the S;-.foty of I'tirsons on Ilailways 

:'.0:5. Negligently endangering the Safety of Persons on Kailways 

:504. Injuring Persons by I'urious Driving 

:!05. Preventing the Having of Life of any Person Shipwrecked 

:iO(i. Leaving Holes in the Ice and Kxoavations unguarded 

;!07. Neglecting when Liable to provide Food— Causing Podily harm 

to Apprentices and Servants 

o08. Negligently causing Bodily injury to any Person 



I'no 
231 



23:.' 
23:5 
233 

23:; 

234 

23.^) 

2:i(; 

23() 
23t) 
237 

238 
23tl 



CHAPTER XXVII. 

ASSAULTS— KIDNAPPING-OBSTRUCTING OFFICERS AND 
OTHERS IN THE EXECUTION OF THEIR DUTY. 

309. Assault and Battery and Assault Defined 240 

310. Assault with Intent to commit Rape . . . . . . 242 

311. Indecent Assaults on Females 242 

312. Indecent Assaults on Males 242 

313. Assaults Causing Actual Bodily Harm . . . . . 243 

314. Assaults with Intent to commit Indictable Offences — Assaults 

on Peace Otflcers, &c 243 

315. Convicts Assaulting Officers of a Penitentiary .... 244 

316. Assaulting or Obstructing Officers of the Customs . . . 244 

317. Assaulting or Obstructing Officers of the Inland Revenue . . 244 

318. Assaulting Receivers of Wreck 245 

319. Kidnapping 246 

320. Assaults Committed Within Two Miles of the Place where any 

Public Meeting or Poll is Held 24(S 

321. Common Assaults . . . . 247 



Hi CONTENTS. 



CHAPTER XXVIII. 
RAPE— CARNALLY KNOWING CHILDREN— ABORTION. 

ART. PAG 12 

322. Definition of Cariuil Knowledge . . . . . . . 248 

323. Definition of Kape 248 

324. Punishment for Rape ""lO 

325. Carnally Knowing Children Under Ten . . . . .250 
320. Carnally Knowing Children Between Ten and Twelve . .251 

327. Attempting to have Carnal Knowledge of a Girl under Twelve 251 

328. Abortion 251 

329. Supplying Instruments to Procure Abortion . . . .252 

CHAFIER XXIX. 

CRIMES AFFECTING CONJUGAL AND PARENTAL RIGHTS- 
BIG AMY— ABDUCTION. 

330. Definition and Punishment of Bigamy 253 

331. Principals in Second Degree in Bigamy 255 

332. Solemnization of Marriages without Lawful Authority . . 255 

333. Feigned Marriages 256 

334. Solemnization of Marriage Contrary to Law . , . . 256 

335. Abduction with Intent to INIarry 25(5 

336. Abduction of Girls under Sixteen 258 

337. Stealing Children under Fourteen 259 

CHAPTER XXX. 
OFFENCES AGAINST CHILDREN BY PARENTS AND OTHERS. 

338. Neglecting to Provide Food for Children . . . . . 261 

339. Abandoning Children under Two Years of Age . . . 261 

CHAITER XXXI. 
LIBELS ON PRIVATE PERSONS. 

340. Definition of Libel . 265 

341. Things Capable of being Libels 264 

342. Defamatory Matter 264 

343. Publication Defined .265 

344. When a Libel is Malicious 267 

345. Publication of the Truth 267 

346. Publication of Matter Honestly Believed to be True . . . 268 

347. Fair Criticism 269 

348. Parliamentary Proceedings and Fair Comments thereon . . 271 

349. Reports of Proceedings of Public Meetings .... 272 

350. Publication in a Court of Justice 272 

351. Fair Reports of Proceedings of Courts 273 

352. Punishment for Libel ' 274 



CONTENTS. ^ liii 



; • PART yi. 

OFFENCES AGAINST EIGHTS OF PROPERTY AND 

RIGHTS ARISING OUT OF CONTRACTS AND OF- 
FENCES CONNECTED WITH TRADE. 

CHAITER XXXII. 
PR OPERTY— POSSESSION— ASPORTA TION—B AILMENT. 

ART. PAGE 

353. Ofl'mces against Rights of Property and Rights arising out of 

Contracts 277 

354. Property in Movable Things 278 

;!55. Possession 278 

35G. Special Owner 280 

357. Pot'sessor Special Owner as against Stranger .... 281 

358. Taking and Carrying Away 281 

359. Bailment Defined 282 

CHAPTER XXXIII. 
THINGS CAPABLE OR NOT OF BEING STOLEN. 

360. Things Capable of Being Stolen 284 

301. Movable Things— Land— Things Fixed to Land . . .284 

362. Title Deeds and Choses in Action 284 

363. Water— Gas— Electricity 285 

364. Tame Animals and Wild Animals in Captivity . . . 286 

365. Wild Animals Living and Dead 287 

366. Dead Bodies 288 

367. Things Abandoned 288 

368. Things of no Value 288 

CHAPTER XXXIV. 
THEFT IN GENERAL. 

369. Definition of Theft 289 

370. Theft by Taking and Carrying Away— Robbery . . .291 

371. Theft by a Servant— Embezzlement 293 

372. Theft by a False Pretence 294 

373. Theft by Taking Advantage of a Mistake 295 

374. Theft by Bailees 297 

375. By and from Whom Theft may be Committed . . . .297 

376. Finding Goods 299 

377. Conversion after a Taking Amounting to a Trespass . . 301 

378. Conversion after Innocent Taking 301 

379. Obtaining by False Pretences not Theft 303 



Uv CONTENTS. 



Xm. 1>AGB 

3S0. Temporary Taking is not Theft 303 

381. Taking Tame Animal Wandering not Theft . . , .303 

382. Evidence as to Tlieft 304 

CHAPTER XXXV. 
EMBEZZLEMENT BY CLERKS AND SERVA^^TS. 

383. Embezzlement by Clerks and Servants — Who are Servants . 305 

384. The Property Embezzled Must be the Masters . . .309 

385. Distinction Between Embezzlement and Other Kinds of Theft 310 

386. Evidence as to Embezzlement 311 

CHAPTER XXXVI. 
ROBBERY AND EXTORTION BY THREATS 

387. Robbery 313 

388. Extortion by Threats 31S 

CHAPTER XXXVII. 
BURGLARY, HOUSEBREAKING, ETC. 



389. Definitions . 

390. Robbing Places of Worship — Burglary 

391. Housebreaking and Commission of Felony 

392. Entering DwelUng-house with Intent 

393. Breaking out After Committing Felony 

394. Being Found in Possession of Housebreaking Instruments 

CHAFTER XXXVIII. 



316 
317 
318 
318 
318 
319 



PUNISHMENT OF THEFTS AND OFFENCES RESEMBLING 
THEFT COMMITTED IN RESPECT OF PARTICULAR 
THINGS, IN PARTICULAR PLACES, BY PAR- 
TICULAR PERSONS— RECEIVING GOODS 
UNLAWFULLY OBTAINED. 

395. Punishment for Stealing Things for which no Special Punish- 

ment is provided 320 

396. Punishment for Appropriating Property with Intent to Defraud, 

for which no Specnal Punishment is Provided . . . 320 

397. Additional Punishment when Value of Property Exceeds Two 

Hundred Dollars 321 

398. Valuable Securities 321 

399. Testamentary Instruments 322 

400. Document of Title to Lands 322 



CONTENTS. Iv 



ART. rAGli 

401. Offenders apainst Provisions of Articles 399, 400, not Liable to 

Conviction in certain Cases 322 

402. Judicial or Official Documents 323 

403. Stealing Post Letters, &c. — Stopping Mails with Intent to Rob 

or Search — Issuing Money Orders Fraudulently . . . 324 

404. Stealing Mailable Matter other than Post Letters . . . 326 

405. Election Documents 326 

406. Railway Tickets 326 

407. Cattle / . 327 

408. Dogs, Birds, Beasts and other Animals . . . i . 327 

409. Pigeons j . . 328 

410. Oysters 328 

411. Things Fixed to Buildings or in Land 3?9 

412. Trees in Pleasure Grounds, &c., of Five Dollars' Value — Trees 

elsewhere of Twenty-five Dollars' Value .... 329 

413. Trees of the Value of Twenty-five Cents 330 

414. Receiving Stolen Trees exceeding in Value Ten Dollars . . 330 

415. Timljer Found Adrift 331 

416. l^ences— Stiles— Gates 331 

417. Failing to Satisfy Justice that Possession of Tree, &c., is Lawful 332 

418. Rools, Plants, &c., Growing in Gardens, &c 332 

419. Roots, Plants, isic, Growing elsewhere than in Gardens, &c. . 333 

420. Ores of Metals 333 

421. Things Under Seizure 334 

422. Stealing from \hQ Person 334 

423. Stealing in Dwelling Houses 335 

424. Stealing in Manufactories, etc 335 

425. Fraudulently Disposing of Goods Entrusted for Manufacture . 335 

426. Stealing from Ships, Wharves, etc 33(> 

427. Stealing Wreck 336 

428. Stealing Things Dejwsited in Indian Graves in British Columbia 337 

429. Clerks and Servants 337 

430. Public Servants 338 

431. Public Servants Refusing to Deliver Up Chattels, Moneys or 

Books, etc., Lawfully Demanded of Them .... 339 

432. Bank Officers and Servants 339 

433. Tenants and Lodgers 340 

434. Bringing Stolen Property into Canada 340 

CHAPTER XXXIX. 

OBTAINING PROPERTY BY FALSE PRETENCES AND OTHER 
CRIMINAL FRAUDS AND DEALINGS WITH PROPERTY. 

435. Obtaining Goods, etc., by False Pretences 341 

436. Definition of "Fabe Pretence" 844 



Ivi CONTENTS. 



AUT. I'AGE 

437. Of "Obtaining" ..•,.. 340 

438. Intent to Defraud . . 34i) 

439. Cheating tit Play 34i» 

440. Obtaining Passage on Railways, etc., by False Tickets . . 349 

441. Pretending to Enclose Money, etc., in a Post Letter, and other 

Frauds in Respect to Post Letters and the Postal Service . 350 

442. Frauds by Officers and Men of Militia Force . . . .351 

443. Constables of the Northwest Mounted I'olice Force Fraud- 

ulently Obtaining Pensions 352 

444. Selling Vessel or Wreck, Not Having Title Thereto . . . 352 

445. Other Offences Respecting Wrecks and Marine Stores . . 35;> 

446. Concealing Gold or Silver with latent to Defraud Partner in 

Claim 354 

447. Removing or Concealing Ores, &c., with Intent to Defraud, &c. . 355 

448. Other Unlawful Dealings with Gold and Silver .... 355 

449. Warehousemen, &c., Giving False Receii)t8— Knowingly Using 

the Same 350 

450. Owners of Merchandise Disposing Thereof Contrary to Agree- 

ments with Consignees Who Have Made Advances Tliereon 357 

451. Making False Statements in Receipts for Property that Can Be 

Used Under "The Bank Act ' — Fraudulently Dealing with 

Property to Which Such Receipts Refer .... 358 

452. Innocent Partners 358 

453. Assigning Property with Intent to Defraud Creditors . . 359 

454. Destroying or Falsifying Books with Intent to Defraud Creditors 359 

455. Concealing Deeds or Incumbrances or Falsifying Pedigrees . . 360 

456. Frauds in Respect to the Registration of Titles to Land in British 

Columbia 360 

457. Frauds in Respect to the Registration of Titles to Land in the 

Terrritories 361 

458. Fraudulent Sales of Property in Quebec 362 

459. Fraudulent Hypothecation of Real Property in Quebec . . 362 

460. Fraudulent Seizures of Lands in Quebec 362 

461. Unlawfully Applying Marks to Public Stores .... 363 

462. Taking Marks from Public Stores 364 

403. Unlawful Possession, Sale, &c., of Public Stores .... 364 
464. Presumption Where Offender is in Her Majesty's Service, 

or a Dealer in Marine Stores, or Old Metals .... 364 

405. Not Satisfying Justice that Possession of Public Stores is Lawful 365 

466. Searching for Stores Near Her Majesty's Vessels . . . 365 

407. Receiving Regimental Necessaries From Soldiers or Deserters . 366 

468. Receiving, &c., Necessaries from Marines or Deserters . . 367 

469. Receiving, &c., a Seaman's Property 367 

470. Not Satisfying Justice that Possession of Seaman's Property is 

Lawful 368 



CONTEXTS. Ivii 



ART. I-AGB 

471. Unlawful Disposition of Arms, &c.', of the Militia Force . . 308 

472. Unlawful Disposition of Arms, iS:c., of the Northwest Mounted 

Police Force . 36{> 

473. Conspiracy to Defraud or Extort 369 

474. Pretending to Exercise Witchcraft ...... 370 

475. Cheating 370 

476. Concealing Treasure Trove 371 

CHAPTER XL. 

FRAUDS BY AGENTS, TRUSTEES AND OFFICERS OF COM- 
PANIES—FALSE ACCOUNTING. 

477. Misappropriation by Bankers, Merchants. &c 372 

478. Misappropriation under Power of Attorney .... 374 

479. Misappropriation by Factors or Agents 375 

480. As.sisting in such 3Iisappropriation 370 

481. Fraudnlent Trustees 370 

482. Frauds by Directors, Members and Officers of Incorporated 

Companies 377 

483. Frauds by Officers and Members of Unincorporated Bodies . 378 

484. Defence in Certain Cases 379 

CHAPTER XLI. 
RECEIVING. 

485. Receiving Defined 380 

486. Receiving Property Feloniously Obtained 381 

487. Receiving Property Obtained by the Commission of a Mis- 

demeanor 382 

488. Receiving Property Obtained by Offence Punishable on Sum- 

mary Conviction 382 

CHAPTER XLII. 
FORGERY IN GENERAL. 

489. Definition of Forgery— Intent to Defraud . . . . . 384 

490. Making a False Document Defined 380 

491. "Document" 392 



Iviii CONTUyrS. 



CHAITER XLIII. 

PUNISHMENT OF PARTICULAR FORGERIES, OFFENCES 

RESEMBLING FORGER Y, AND A CTS PREPARA TOR Y TO 

THE COMMISSION OF FORGERY. 

ART, PAGE 

492. Counterfeiting Public Seals, and Forging State Documents . 393 

493. Forgery and other OfTences Respecting Transfers of Shares 

in Public Fundsr-Claims to Crown Grants, Scrip, «&c. . 394 

494. Making False Entries in Books of I'ublic Funds . . . 39G 

495. Making False Dividend AVarrants 397 

496. Forgery of Entries in Registers of Birth, Baptisms, 3Iarriages, 

Deaths, Burials and other Offences Respecting such 
Registers . 397 

497. Forgery and other Offences Respecting Copies of Registers . 398 

498. Forgery of Debentures — Government and Bank Bills and 

Notes, &c. — Deeds, Bonds, &c. — Wills— Bills of Ex- 
change — Orders. Receipts 399 

499. Stamps 401 

500. Debentures Issued under any Lawful Aiithority . . . 402 

501. Forgery of Foreign Bills, and other Offences Respecting the 

Same 403 

502. Forgery of Notarial Instruments and Documents Relating to 

the Registration of Title, &c 404 

503. Forgery of Public Registers or Books — False Copies Thereof . 405 

504. Forgery of Certain Judicial Documents 405 

505. Forgery of other Judicial Documents and Instruments Admis- 

sible in Evidence in Courts of Justice .... 40G 

50(3. Acknowledging Recognizances without Authority . . . 40S 

507. Forgery of Letters Patent 408 

508. Forgery of ^larriage Licenses 408 

509. Forgery of Passenger Tickets 409 

510. Offences Respecting Crossed Cheques 409 

511. Drawing Bills, &c., without Authority 409 

512. Demanding Property upon Forged Instruments . . . 410 

513. Unlawful Possession of Forged Bank Notes — Dominion, Pro- 

vincial or Bank Note Paper — Instruments for flaking Such 
Pa|)er 411 

514. Unlawful Possession, &c., of Paper Prepared for Debentures 

and other Securities — Plates, Dies, &c. .... 413 

515. Printing Circularti, &c., in Likeness of Notes .... 415 

516. Forgery of any Documeiit 41G 

517. Punishment in Cases not Otherwise Provided For in R. S. C. 

c. 165, and for which Offender is by any Act Liable to 
Greater Punishment 416 

518. Forgery at Common Law, ^lisdemeanor 417 



CONTENTS. lix 



ART. I'AOIJ 

519. Special Statutory Provisions Respectinj^ For<;ery and OtTouces 

Resemblin<j: Forgery 417 

CHAPTER XLIV. 

FORGERY OF TRADE MARKS, FRAUDULENT MARKING OF 

MERCHANDISE— OFFENCES RESPECTING PATENTED 

ARTICLES, INDUSTRIAL DESIGNS AND THE 

MARKING OF TIMBER. 

520. Definitions 42? 

521. Words or Marks on Watch Cases 424 

522. Definition of Forgery of a Trade ]Mark— Burden of Proof . . 425 

523. Definition of Applying Trade .Marks to Goods— Burden of Proof 425 

524. Forgery of Trade Marks, &c.— Defence . . . . . 426 

525. Selling Goods Falsely Marked— Defence . . . . . 427 

526. Selling Bottles marked with Trade Mark without consent of 

Owner • 428 

527. Punishment of Offences defined in this Chapter . . . 428 

528. Falsely representing that Goods are Manufactured for Her 

Majesty, &o 428 

529. Unlawful Importation of Goods liable to Forfeiture under this 

Chapter 42!> 

530. Defence where Person charged innocently in the ordinary 

course of business makes Instruments for Forging Trade 
Marks 42!^ 

531. Defence where Offender is a Servant 430 

532. Exception respecting Trade description Lawfully applied to 

Goods on 22nd May, 1888, &c 431 

533. Patentee selling Patented Article not marked, &c . . . 431 

534. Falsely 'narking Article as Patented 432 

535. Unlawfully applylying Industrial Design to any Article, &c . 4:)2 

536. Falsely placing on any Article words Denoting tlie Registra- 

tion of an Industrial Design, &c 433^ 

537. Using Timber Marks unlawfully 433 

CHAraER XLV. 
PERSONATION. 

588. Personation at Civil Service Examinations 435 

539. Personation at Militia Parades 435 

540. Fraudulently acting as Agent of Author in Registration of 

Copyright 435 

541. Personation to obtain Deposits in Savings Banks . . . 430 

542. Falsely representing Oneself to be a Notary, &c., and protesting 

Bill in Quebec 43(> 



Ix CO XT E NTS. 



CHAITER XLVI. 
OFFENCES RELATING TO THE COIN. 

ART. PAGE 

Mo, Interpietai ion of Terms 437 

544. Counterfeiting Coins, <&c 438 

545. Dealing in and importing Counterfeit Coin 439 

540. ^Manufacture of Copper Coin and importation of Uncurrent 

CopjKjr Coin 4;)9 

547. Exportation of Counterfeit Coin 439 

548. Making Instruments for Coining 440 

549. ]iringing Instruments for Coining from ^Nlints into Canada . 441 

550. Clipping Current Gold or Silver Coin 441 

551. J )efa(!iug Current Coins 442 

552. Passing Clippings, t^c. of Current Gold or Silver Coin . . 442 
55o. I'osse.ssing Counterfeit Coins 442 

554. Uttering Counterfeit or Light Coins, ^Metals, &c'. . . . 443 

555. I'unishment of Subsequent Offences 444 

550. Uttering Defaced Coin 444 

557. Uttering Uncurrent Copper Coins 444 

558. Uncurrent Foreign Coins 445 

559. When Oflence completed 440 

' CHAPTER XLVII. 

ADVERTISING COUNTERFEIT MONEY. 

500. Definition 447 

501. Advertising Counterfeit 31oney and other Offences connected 

therewith 447 

• CHAPTER XLVIII. 

MALICIOUS INJURIES TO PROPERTY. 

502. Arson— Setting Fire to Buildings, &c. — Offences punishable by 

Imprisonment for Life 449 

503. Arson — Setting Fire to Buildings, &c. — Ofibnces punishable by 

Fourteen Years' Imprisonment 450 

504. Recklessly sotting Fire to Forests, &c 451 

565. Attempting to set on Fire, &c 452 

560. Threats to Burn, &c 453 

567. Setting Fire to and other Injuries to Her Majesty's Ships, Dock- 

Yards, &c 453 

568. Setting Fire to Ship-, and other Injuries thereto, and to Lights, 

Buoys, &c 454 

-569. Injuries to Her Majesty's Vessels — Goods liable to Seizure — 

Custom House, &c. 456 



CONTENTS. Ixi" 



AKT. PAfiE 

570. Injuries by Explosive Substances 45(5 

'•>'{. Injuries to Manufactures, IMacliinory, &c 457 

572. Injuries to j\Iines and Oil Wells 458 

5715. Injuries to ^lachinory, ike, used for working; Mines— Oil Wells 4o!> 

574. Injuries to Sea and River l>anks, and to works on Rivers, 

( 'anals, tOc 400 

575. Otbor Injuries to works on Rivers and Canals . . , . 4(10 
57G. Injuries to Brid^^es, Viaducts and Toll-bars .... 4(!1 

577. Injuries to Rafts of Timber and Works used for tbe Transmis- 

sion Tliereof 401 

578. Preventing the Saving of Wrecked Vessels or Wre;:k .. . 462 
571). Injuries to Fish Ponds 4(12 

580. Injuries to Railways and Railway Property with Intent, &c. . 4(»;) 

581. Injuries to Railways and Railway Property .... 4U3 

582. Obstructing Railways • • 464 

5.S3. Injuries to Packages in the Custody of Railways . . . 465 

584. Injuries to Electric Telegraphs, &c 465 

585. Injuries to Mailable Matter — Post Letter Bags — Letter Boxes, 

&c. — Bonks of Account — Obstructing Mails . » . 460 

586. Injuries to Cattle 467 

587. Attempting to Injure Cattle 467 

588. Injuries to Other Animals . .. - ♦ . • • i • 468 

589. Threats to Injure Cattle Z . • 468 

500. Injuries to Hoi)-binds and Grape Vines . . *. . . 469 

591. Injuries to Trees, &c., Growing in Certain Places . . . 460 

592. Injuries to Trees Wheresoever Growing 470 

593. Injuries to Vegetable Productions Growing in Gardens . . 470 

594. Injuries to Cultivated Roots and Plants Growing Elsewhere . 471 

595. Injuries to Land ]Marks Indicating Municipal Divisions . . 471 
59(i. Injuries to Other Land Marks 472 

597. Injuries to Fences, &c 472 

598. Injuries to Turnpike Gates, Toll-bars, &c 473 

699. Injuries to Works of Art 473 

600. Injuries to Poll-books, &c 474 

601. Injuries to Buildings by Tenants 475 

602. Injuries Not Before Provided For 475 

603. Other Injuries Not Otherwise Provided For .... 475 



CHAPTER XLIX. 
CRUELTY TO ANIMALS. 

604. Cruelty to Animals 477 

605. Keeping Cock Pits 477 

606. The Conveyance of Catt.e 478 



Ixii CONTEXTS. 



AliT. I'AGK 

<)07. Search of Premises — Penalty for llefusing Admission to Peace 

Ollicer 47!) 



CHAPTER L. 

OFFEyCES CONNECTED Wmi TRADE AND lUlE ACHES OF 

CONTRACT. 

(>08. Conspiracies in Restraint of Trade 480 

<>09. What Acts Done in Restraint of Trade are not Unlawful . . 480 
(ilO. Combinations in Restraint of Trade ...... 481 

(ill. Criminal Breaches of Contract 482 

(112. Posting; Up Copies of I'rovisione Respecting? Criminal Breaches 

of Contract — Defacing .Same 483 

<)13. Intimidation 484 

(il4. Intimidation of Anj' Person to Prevent Him \N'orking at Any 

Trade 485 

615. Intimidation of Any Person to Prevent Him Dealing inAVheat, 

&c. — Unlaw fidly Preventing Seamen from AVorking . . 48(> 
(>16. Intimidation of Any Person to Prevent Him Bidding for Public 

Lands 487 

017. Breaches of Employer's Duty to Seamen — Leaving Seamen 

Behind 487 

018. Breaches of Shipowner's Duty to Seamen under Act of the 

United Kingdom — Sending Unseaworthy Ships to Sea . 489 

619. Breaches of Shipowners' Duty to Seamen under Canadian Act 

—Sending or Taking Unseaworthy Ships to Sea . . 490 

620. Breach of Duty by Seamen to Employers 491 

(521. Breach of Duty of Seamen to Each Other or Other Persons on 

Board 494 

622. Breach of Duty to Other Ship in Case of a t'ollision . . .494 



CHAFIER LL 
ADULTERATION OF FOOD. 

623. Definitions 496 

<{24. Adulterating Eood or Drug 498 

625. Sailing Adulterated Food or Drugs 499 

626. When Selling Skimmed Milk not an Offence .... 499 

627. Having Adulterated Liquors in Possession 500 



CONTENTS Ixiii 



<JJ8. Attadiint? I'al^e fiabel to I'oocl orDruj? 500 

(120. Other Olfeiiees icspocliu^' stile of ^lilk 501 



Arl'IONDIX OF NoTKS 5015 

Ixni:x 530 



A DIGEST 

or 

THE CRIMINAL LAW 

OF 

CANADA. 



PART I. 



PEELIMINAEY. 



Explanation op Tebms. 

CHAP. I. — Al'l'UCATION OF THE 

Criminal Law. 

CHAP. II. — Punishments. 

CHAP. III. - Classification of 
Crimes and General Provisions 
AS to their Punishment — Par- 
dons, &c. 



CHAP. IV.— General Exceptions. 
CHAP. V. — Parties to the Commis- 
sion OF Crimes — Princii'Al and 

ACCKSKORY. 

CHAP. VI. — Degrees in the Com- 
mission OF Crime — Incttement — 
Conspiracy — Attempts. 



EXPLANATION OF TERMS. 

INDICTMENT — INFORMATION — SUMMARY CONVICTION. 

"Whenever it is stated that an oiFender is liable to any 
punishment, the meaning is that he is so liable on con- 
viction on indictment. ^ 

^ Whenever it is stated that an oflfender is liable, on 
summary conviction, to any punishment, the meaning is 

' As to coses in which an information will lie see Arch. 121. 

« R. S. C, c. 174, 8. 2 (6) ; o. 178, s. 5. Hatton's Case (2 Salk. 477) ; Dalt. o. 6, s. 8 ; B. v. 
Weale (5 C. & P. 135) ■ If (in any summary proceeding) no time is specially limited for 
making any complaint, or laying any information in the Act or law relating to the par- 
ticular case, the complaint shall be made, or the information shall be laid within six 



A DIGEST OF 



that he is so liable on summary conviction before one or 
any greater number of justices of the peace, or before any 
person having the authority of two or more justices of the 

peace. 

' "Whenever it is stated that any offender is liable, on 
summary conviction before two justices of the peace, to 
any punishment, the meaning is that he is so liable on 
summary conviction before two or any greater number ^ 
of justices of the peace or before any person having the 
authority of two or more justices of the peace, but not 
before one justice of the peace. 

•^ The following expressions have the meanings assigned 
to them whenever used in any provision of any Act relating 
to the criminal law : — 

JUSTICE. 

(«.) The expression "justice " means a justice of the 
peace, and includes two or more justices, if two or more 
justices act or have jurisdiction, and also any person 
having- the power or authority of two or more justices of 
the peace. 

INDICTMENT. 

{b.) The expression "indictment" includes information, 

months from the time when the matter of complaint or information arose, except in the 
North-West Territories, and in that part of the county of Snguenay which extends from 
Porlneuf , in the said county, to the eastward as far as the limits of Canada, including 
all the islands adjoining thereto, where the time within which such complaint may be 
made, or such information may be laid, shall be extended to twelve months from the 
time when the matter of complaint or information arose. R. S. C c. 178, s. 11 ; 52 Vict 
(D),c.45,8.5. 

• R. S. C. c 178, ss. 4, 10; Paley's Sum. Conv. (6th ed.). 35. 

- There are, however, some exceptions to this rule, as in cases of prosecutions under 

ho Inland Revenue Act (R. 8. C, c. 34, s. U3) or the Canada Temperance Act (R. S. C, 

c. 106, 8. 104), as enacted in 51 Vict. (D.) c- 34, g, 7, where it is provided that no other 

justice shall sit with the judge, magistrate or two justices before whom the prosecution is 

instituted. 

•' R. S. C, 0. 174, 8. 2 ; 14 & 15 Vict., c 100, s. 30. The Interpretation Act (R. S. C. c. 1) 
also applies, but it is not thought necessary to insert its provisions here. 



THE CRIMINAL LAW. 8 



inquisition and presentment as well as indictment, and 
also any plea, replication or other pleading, and any 
record. ' 

FINDING OF THE INDICTMENT. 

(c.) The expression " finding of the indictment " includes 
also the taking of an inquisition, the exhibiting an infor- 
mation and the making of a presentment. 

PROPERTY. 

{d.) The expression " property " includes goods, chat- 
tels, money, valuable securities, and every other matter 
or thing, w^hether real or personal, upon or with respect 
to which any offence may be committed. 

DISTRICT, COUNTY OR PLACE. 

(e.) The expression "district, county or place " includes 
any division of any Province of Canada, for purposes 
relative to the administration of justice in criminal cases. 

TERRITORIAL DIVISION. 

(/.) The expression "territorial division " means county, 
union of counties, township, city, town, parish or other 
judicial division or place to which the context applies. 

CATTLE. 

The expression "cattle," when used in reference to any 
provision respecting larceny and other similar offences,' 
malicious injuries to property,- cruelty to animals, or the 
conveyance of cattle,' includes any horse, mule, ass, swine 
sheep or goat, as well as any neat cattle or animal of the 
bovine species, and whatever is the age or sex of the ani- 
mal, and whether castrated or not, and by whatever tech- 
nical or trivial name it is known, and shall apply to one 
animal as well as to many. 

' R. S. C, c. lU, 9. 2. 
„ ._ = R. S. C, c. 168. 8. 1. 

^ R.S.C..C. 172,8. 1. 

b2 



A DIGEST OF 



HAVING IN POSSESSION. 

"Having in possession," when used in reference to any 
person in any provision respecting larceny and other 
similar offences/ forgery, - offences relating to the coin, ^ 
public stores,' and the property of seamen in the navy,'' 
includes not only having in his own personal possession, 
but also knowingly" 

(a.) having in the actual possession or custody of any 
other person ; and 

{b.) having in any place (whether belonging to or 
occupied by himself or not) for the use or benefit of him- 
self or of any other person. 

^ If there are two or more persons, any one or more of 
whom, with the knowledge and consent of the rest, has 
any such thing in his or their custody or possession, it 
shall be deemed and taken to be in the custody and pos- 
session of all of them. 



^ The following expressions have the meanings assigned 
to them when nsed in reference to any provision respect- 
ing larceny and other similar oj0fences. 

BANKER. 

(a.) The expression "banker" includes any director of 
any incorporated bank or banking company. 

DOCUMENT OF TITLE TO GOODS. 

(b.) The expression " document of title to goods " in- 

1 R. S. C. c. 164, 8. 2 U). 

2 R. S. C. c. 165, 8. 2 i 24 & 25 Viot. 0. 98, s. 45. 

3 R. S. C. 0. 167, 8. 2 ; 24 & 2.5 Vict. o. 99, g. 1. 

< 50 & 51 Vict. {D) ".. 45, 8. 2 (e) ; 38 & 39 Vict. c. 25, s. 10. 

6 R. S. C. 0. 171, 8. 3 : 32 J: oi5 Vict. o. 57, s. 5. 

• or wilfully, R. S. C. c. 164, 8. 2 «), and wilfully, R. S. C. c. 165, s. 2, and c. 167, s. 2. 

' R. S. C. 0. 164, 8. 2«). 

« R. S. C. 0. 164, 8. 2 ; 24 & 25 Vict. c. 96, s. 1. 



THE CRIMINAL LAW. 



eludes any bill of lading, India warrant, dock warrant, 
warehouse-keeper's certificato, warrant or order for the 
delivery or transfer of any goods or valuable thing, 
bought and sold note, or any other document used in 
the ordinary course of business as proof of the possession 
or control of goods, authorizing or purporting to author- 
ize, either by indorsement or by delivery, the possessor of 
such document to transfer or receive any goods thereby 
represented or therein mentioned or referred to. 

DOCUMENT OF TITLE TO LANDS. 

(c.) The expression "document of title to lands" in- 
cludes any deed, map, paper or parchment, written or 
printed, or partly written and partly printed, being or 
containing evidence of the title, or any part of th ? title, 
to any real property, or to any interest in any real pro- 
perty, or any notarial or registrar's copy thereof, or any 
duplicate instrument, memorial, certificate or document 
authorized or required by any law in force in any part of 
Canada, respecting registration of titles, and relatmg to 
such title. . 

MUNICIPALITY. 

[d.) The "expression "municipality" includes th; cor- 
poration of any city, town, village, township, parish or 
other territorial or local division of any Province of Can- 
ada, the inhabitants whereof are incorporated or have the 
right of holding property for any purpose. 

NIGHT. 

(e.) The night is deemed to commence at nine of the 
clock in the evening of each day, and to conclude at 
six of the clock in the morning of the next succeeding 
day, and the day includes the remainder of the twenty- 
four hours. 



6 A DIGEST OF 



PROPERTY. 

(/.) The expression "property" includes 

(i) every description of real and personal property, 
money, debts and legacies, and all deeds and instruments 
relating to or evidencing the title or right to any pro- 
perty, or giving a right to recover or receive any money 
or goods ; and 

(ii) not only such property as was originally in the pos- 
session or under the control of any person, but also any 
property into or for which the same has been converted 
or exchanged, and anything acquired by such conversion 
or exchange, whether immediately or otherwise ; and 

(iii) any postal card, postage stamp or other stamp issued 
or prepared for issue by the authority of the Parliament 
of Canada, or of the Legislature of any Province of Can- 
ada, for the payment of any fee, rate or du.ty whatever, 
and whether still in the possession of the crown, or 
of any person or corporation, or of any officer or agent of 
the Government of Canada, or of the Province by the 
authority of the Legislature whereof it was issued or 
prepared for issue ; and such postal card or stamp shall 
be held to be a chattel, and to be equal in value to the 
amount of the postage, rate or duty which can be paid 
by it, and is expressed on its face in words or figures or 
both. 

TESTAMENTARY INSTRUMENT. 

(g.) The expression " testamentary instrument " in- 
cludes any will, codicil, or any other testamentary writing 
or appointment, as well during the life of the testator 
whose testamentary disposition it purports to be, as after 
his death, whether the same relates to real or personal 
property, or both. 

TRUSTEE. 

(h.) The expression "trustee" means a trustee on 
some express trust created by some deed, will or instru- 



THE CRIMINAL LAW. 



ment in writing, or a trustee of personal property crer.ted 
by parol, and includes the heir or personal representative 
of any such trustee, and every other person upon or to 
whom the duty of such trust has devolved or come, and 
also an executor and administrator, and an official man- 
ager, assignee, liquidator or other like officer acting under 
any Act relating to joint stock companies, bankruptcy 
or insolvency, and any person who is, by the law of the 
Province of Quebec, an " adminislrateur " ; and the expres- 
sion "trust " includes whatever is by that law an " admin- 
istraliony 

VALUABLE SECUEITY. 

{i.) ' The expression "valuable security" includes 
(i) any order, exchequer acquittance or other security 
whatsoever, entitling or evidencing the title of any per- 
son or body corporate to any share or interest in any 
public stock or fund, whether of Canada or of any Province 
thereof or of the United Kingdom, or of Great Britain or 
Ireland, or of any British colony or possession or of any 
foreign state, or in any fund of any body corporate, com- 
pany or society, whether within Canada or the United 
Kingdom, or any British colony or possession, or in any 
foreign state or country, or to any deposit in any savings 
bank or other bank ; and 

(ii) any debenture, deed, bond, bill, note, warrant, order 
or other security whatsoever, for money or for payment of 
money, whether of Canada, or of any Province thereof, or 
of the United Kingdom, or of any British colony or posses- 
sion, or of any foreign state, and any document of title to 
lauds or goods as hereinbefore defined, and any stamp or 
writing which secures or evidences title to or interest in 
any chattel personal, or any release, receipt, dischargi? or 

' An unstamped promise to pay in the hands of tlie maker is not a valuable security 
within tlie definition ; Scott, v. J{., 2 Can. S. C. 349, reversing the decision of the Court of 
Queen's Bench for Lower Canada in R. v. Scott, 21 L,C. J. 225. See also II. o. Rumnl, 
17 O.R. 227. But an insufficiently or defectively stamped promissory note, the holder 
being ignorant of the defect, may be a valuable security \ R.v. Dewitt, 21 N.B.R., 17. 



8 A DIGEST OF 

other instrument evidencing payment of money, or the 
delivering of any chattel personal. 

Every such valuable security shall, where value is 
material, be deemed to be of value equal to that of such 
unsatisfied money, chattel personal, share, interest or 
deposit, for the securing or payment of which, or deliv- 
ery or transfer or sale of which, or ibr the entitling or 
evidencing, title to which, such valuable security is ap- 
plicable, or to that of such money or chattel personal, 
the payment or delivery of which is evidenced by such 
valuable security. 

WRITING. 

{j.) The expj.ession "writing" includes any mode in 
which, and any material on which, words or figures at 
length or abridged are written, printed or otherwise 
expressed, or any map or plan is inscribed. 



THE CRIMINAL LAW. .0 



CHAPTER I. 

of the application of the criminal law. 
Article 1. 

application of the criminal law. 

The criminal law of Canada exttiuds to all offonces 
committed by any person in Canada, or on such part of 
the sea adjacent to the coast of Canada as is within one 
marine league from ordinary low-water mark, or is deemed 
by international law to be within the territorial sove- 
reijvnty of Her Majesty, or committed by any person 
on board any British ship or boat on the great lakes, or on 
the high seas, or in any place where the Admiralty of 
England has jurisdiction, and to piracy by the law of 
nations wherever committed. 

Article 2. 

application of the law of england. ^ 

The rules as to the application of the criminal law of 
England are not uniform throughout Canada. 

' 12 & 13 Vict. c. % ; 41 & 42 Vict, c 73 ; R, S. C, c 174, s. 8 ; /?. v. Sharp (5 P. 11. Ont. 135). 
See 18 & 19 Vict. 0. 91, s. 21, lis to tlio commission of any oiTenoe by a British subject 
on board a British sliip on the high soas, or in a foreign port, or by any person on board a 
British ship on the high sens ; R. v. Dillon, 6 Allen 61 ; R. v. Martin, 3 G. & 0. 125. See 30 
& ol Vict. c. 124) s. 11, as to the commission of any offence by a British subject on board 
any British ship, or on board any foreign ship to which the offender does not belong. See 
also It. V. Kinsman, James, G2. 

- When a colony is founded by the settlement by British subjects of an unoccupied 
country, there are at onco in force therein, so far as the same are applicable to its condition 
and situation, the common law of England and .such parts of the statute law as are 
general and not local or municipal in character; 2 P. Wm. 75 ; Forhen v. Cochrane (2 B. 
& C. 463); Blonkard v. Galdu (2 Salk. 411) ; Muuor of Lyons v. E. Tnd. Coy. (I Moo. 



10 A DIGEST OF 



Subject to 

(1.) any Act of the Parliament of the United Kinj^dom 
passed subsequently to the respective dates or times here- 
inafter mentioned, that by the terms thereof is applicable 
to Canada, or any Province thereof as a part of Her 
Majesty's dominions ; 

(2.) any Act of the Legislature of any Province now 
forming- part of Canada, passed prior to the date at which 
such Province so became a part of Canada ; and 

(3.) any Act of the Parliament of Canada, 



p. C. C. 173, 272) ; Cora. Dig. Ley (C.) ; F;lklaad Mauds Coy. v. The Qilecn (2 Moo. P. C.C. 
N. S. 266,273) ; Kklhyv. Carmm (1 Moo. P. C.C. 81) ; Camphdlv, Hall (20 St. Tr. Col. 289) ; 
Freeman V. Fairlic (1 Moo. Ind. App. 305) ; C<,l<mial Bank v. Warden (5 Moo. P. C. C. 340) i 
AUy.-Generuly.Steirnrtil^crAVi.lW^.m); Ycap Clieuh Neo\. Onp Olicna lYeoAh. R- 
OP. C. 381); Bent inch- v. Wniink (2 Uaro 1); DUllnghnm v. Wdmni.^ U. C. 0. S. 85) : 
Leith V. WiUia (5 U. C. 0. S. 101) ; Doe d. Anderson v. Todd (2 U. C. Q. «. 82) ; R, v. How 
(14 U. C. C. P. 307) ; Hed-tth v. Wxrd (17 U C. C. P. 667) ; Stinson v. Pennoe/.- (14 Gr. 604) ; 
Citrr V. Tlie Fire AxHiirnnce AnHoeiation (14 0. R. 487) Fu: parte Rottxte (Stuart's L. C. R., 
321) ; Wilson v. Jonen (1 Allen, 658) ; Kavanayli v. Phelon (1 Kerr 472) ; Doe d. Hanington 
V. McFaddin (Berton IS!!' ; II. v. Apideby (Berton 397) ; but no Act of Parliament made 
after a colony is planted )<> construed to extend to it without express words, showing the 
intention of the loeislnturo to bo that it should ; It. v. VaiigJuin (4 Burr. 2500) 2 P. Wm. 
75, Harrimn v. Spencer (15 0. K. 692). In Unlackc v. Dickson (James 287), it was lield thai 
the whole of the Enslish common law, excepting such parts thereof as are obvious'.y 
inconsistent with the circumstances of the country, were in force in Nova Scotia, whilo 
on the other hand none of the statute law of England was in force there excepting such 
parts as are obviously applicable and necessary. In the one case the exclusion, and in the 
other the reception, forms Lhc exception. 

The Statute 5 & 6 Ed. 6, c. 16 against buying and selling offices was in Duwen v. Painter 
(Freeman 1"T; held not to be in force in Barbadoes (a settled colony), and in Blankard v. 
Galdy (2 8ull<. 411), the same statute was held not to bo law in Jamaica (a conquered 
colony). But in the latter case the decision was put upon the ground that the colony was 
acquired by conquest, in whicli case the rule is not the same as in the case of a colony 
acquired by settlement. In R. v. Vauuhaa (4 Burr. 2500) Lord Mansfield, referring to the 
statute 12 W. 2. c. 2. that no officer shall bo appointed for gifts, and to 5 & 6 Ed- 6, c.l6. 
said that "the argument is strong that these statutei do not extend to Jamaica, though 
" they were enacted long before that island belonged to the Crown of England. If 
" Jamaica was considered as a conquest they would retain their old laws till the conqueror 
"had thought fit to alter them. If it is considered as a colony (which it ought to be, the 
" old inhabitants having left the island), then these statutes are positive regulations of 
" police, not adapted to the circumstances of a new colony ; and, therefore, no part of the 
'*law of England which every colony from necessity is supposed to carry with them at 
"their first plantation." The case however, as Lord Mansfield observed, did not turn 
upon the question as to whether or not the statutes referred to were in force in Jamaica. 

The statute 5 & Ed. 6,c. 16, waa probably in force in Upjer Canada by virtue of 40 Geo. 
3, (P. C.) 0. 1, and was clearly extended thereto by 49 Geo. 3, c. 126, which made it applic- 



THE CRIMINAL LAW. 11 

The criminal law of England, so far as it is applicable 
to the situation and condition of the people of Canada, is 
applied to Canada as follows : 

[a.) In Ontario,' as it stood on the 17th of September, 
1792 

[h.) In Quebec,- as it stood in 1764. 



able to His Majesty's dominions ; If. v. Mercer (17 U. C. Q. B. 602) ; R. v. Moodie (20 IT. 
C. Q. 13. 389) ; Foott v. JiullorL- (4 U. f. Q. B. 480). 

Henley, A. (}•, and Yorko, S. 0., (1757) were of the opinion that the statute 1 Mar., o. 6, 
declaring, among other things, the counterfeiting of strange coins current within the 
realm to bo treason, did not apply to Nova Scotia, as it formed no part of the realm ; 
(Forsyth's Con. Law, 2). See Art. 56. 

In the An'y.-Gsneral v. Jianee Siimotmye Domct; (9 .Moo. Ind. App. 387), it was held that 
the English law as to tho forfeiture of goods and chattels was not applicable to the ease 
of a native Hindoo (though a British subject) who committed suicide at Calcutta. 

In Ontario the following statutes, rel.'iting to the criminal law and its administration, 
have been held to bo in force :— 12 Geo. 2, c- 28, 13 Geo. 2, c. 19, and 27 Oeo. 3, c. 1, re- 
lating to lotteries, gaming, &c. ; Cnmiin v. Widder (16 U. C. Q. B. 356); Corhy v. 
McDamcl (16 U. C. Q. B. 378) ; Marshall v- Piatt (8 U. C. C. P. 189) ; Loyd v. Clark (11 
U. C. 0. P. 248) ; Cronun v. Griffithx (18 U. C. Q. B. 396) : nattenhy v. Odell (23 U. C. Q. 
B. 482) ; U. v. Mutheson (4 0. R., 559 ; 1 Wm. k M., c. 18, s. 15, (against disturbers of religious 
worship) ; Rcid v. Infilin (12 U. C. C. P. 191) ; 59 Geo. 3, c. f 9, respecting foreign enlist- 
ment ; R. V. Schram (14 I'. C. C. P. 318) ; 38 Eliz. o- 5, relating to actions by common 
informers : Garrett \. Roberta (10 Ont. App. R. 650) ; 21 Geo- 3, o. 49, respecting disorderly 
places of entertainment opened on the Lord's Day ; R. V. Barnes {id U. C. Q. B. 276). It has 
been doubted whether 7 & 8 Wm. 3, c. 4, against treating at elections, is in force : 
Bundas Election Caxe (1 II. E. C. 205). The statute 28 Geo. 3, c. 49, enabling justices in 
certain cases to net beyond the limits of the counties in which they resided, was held to 
be local and not applicable to Upper Canada ; R. v. How (14 U. C. C. P. 307). 

The statutes 9 Geo. 1, c. 19, and 6 Geo. 2. c- 35, against foreign lotteries wore in Ex parte 
Jlomxi (Stuart's L. C. R. 321) held to be in force in Lower Canada. 

The statute 28 Ed. 3, c. 13, allowing aliens a jury de medietate linguK was held not to be 
in force in Nova Scotia; R. v. Burdi II il Old. 125); and if it was ever in force in 
Prince Edward Island it was superseded by local statutes; R.v. Thomxmon (IP. E.l. 
R- 226). 

The statute 13 Geo. 2 o. 19 against gaming was thought by Blanchard, J. C. C, to be in 
force in Nova Scotia, but McDonald, J., on appeal, doubted its application ; Tomu v. 
Chambers (20 N. S. R. 309). 

Thestatute25.Ed. 3, Stat. 5 c. 2, respecting treason is in force in tho North-West 
Territories ; R. v. Riel (2 Man. L.R. 321 ; 10 App. Cas. 675.) 

There are in the reports of the several Provinces many cases respecting the application 
of the common and statute law of England in civil matters to which no reference has 
been made in this note or in the note on the following page, as that could not be done 
without too greatly extending the length of the notes, 

>H.S.C.,c.l44, 8. 1. 
l4Qeo. 3 c. 83,8.11. 



12 A DIGEST OF 



(c.) In Nova Scotia, ' New Brunswick, and Prince 
Edward Island, as it stood at dates which have not been 
definitely determined, but which are indicated in a 
general way in the note hereto. 

' Those Provinces were, according to Forsytli (Cnsos and Opinions on Constitutional 
Law 2G) acquired in 1497 by settlement. It is true that they were not thereafter con- 
tinuously subject to the English Crown. The rule in such cases appears, however, to be 
that a countrj' re-oonquered from the enemy reverts to the same state that it was in be- 
fore the conquest. The second acquisition is, in fact, considered rather as a rusumptinq 
than a conquest (6'nm6f«'« co»e 2 Knapp 269. Forsyth's Cons. Law 16). It would, how- 
ever, 'to an error to assume that no statute passed in England subsequent to 1497 applied 
to such Provinces without express words- A reference to the decisions of the courts of 
these Provinces will show that the contrary is the fact. Regard must always, in such 
cases, bo had to usage, and it often happens that English statute law is introduced by 
charters and commissions from the crown, or by Provincial statutes respecting the 
jurisdiction of courts and the practice therein. 

In Ilex V. McLauflhlin, Ch'nnnan, J. sa.id: "It might not be a clear point as to what 
" period of time should be deemed the time of the settlement of the Colony ; the period 
" of the restoration ot Charles II, it was understood, was adopted in practice by the 
*■ General Assembly of New Brunswick at its first session as the period anterior to which 
" all Acts of Parliament should be considered as extending." (See Cassels's Manual of 
Procedure in the Supreme and Exchequer Courts, p. 33.) 

By the commission to the first Chief Justice of New Brunswick (1784) he was given 
authority, to which the Supreme Court of the Province has succee led, to hoar and deter- 
mine all pleas whatsoever, civil, criminal and mixed, according to the laws, statutes 
and customs of England and the laws of the Province not repugnant thereto, and to do 
all things which any of the justices of either bench or the barons of the exchequer in 
England might do ; Atti/. G<n. v. BnUHe (I Kerr, 443) ; Kelly v. Jonea (2 Allen 473). 

The first General Assembly of Nova Scotia, which then included New Brunswick and 
Prince Edward Island, met at Halifax in 1758, and perhai)sthe most that can be said with 
certainty is, that no English statute passed after that date would apply to either of those 
Provinces unless there were express words therein making its provisions applicable to 
such Proviace, or to Her Majesty's Dominions in general, or unless the same were other- 
wise, by competent authority brought into force there ; (Per Cookburn, A. G. and 
Bethcll, S. G. Forsyth, p. 19.) 

In Nova Scotia the following statutes passed subsequently to 1497 have been held to be 
in force : — 

31 H. 8, c. 1 (1539), Partition ; Doane v. MeKenni/ (James, 323). 

13 Elii!. c. 5 (1571) and 27 Eliz. c. 4 (1584-5), Fraudulent conveyances ; Foster v. Foioler 
(1 Old. 753) ; Moore v. Moore (1 R. & G. 525) ; and other cases. 

21 Jac. 1, c 14 (1623-4), Information of intrusion ; Scott v. Henderson (2 Thomson, 115, 
135, 141) ; Smuth v. McDonald (1 Old. 274, 278) : OoMn v. Chapvell (1 R. & C. 40, 45). 

And in New Brunswick the following :— 

27 H. 8, c, 10, Statute of Uses. 27 H. 8, c. 16, Statute of Enrolments (1535-6). Doe 
d, Hantngtonv. McFadden (Berton, 153.) 

33 H. 8, c. 39, ss. 50, 79 (1541-2), Crown bonds and relief of Crown debtors ; Rex. v. Mc- 
Laughlin (Stev. Dig. 275). 

43 Eliz. c. 6 (1601) and 22-23 Car. 2, c. 9 (1670-1) against trivial and vexatious actions; 
KeVy V. Jones (2 Allen 473) ; Marks y. Gilmour (3 Allen, 170). 



THE CRIMINAL LAW. 13 



[d.) In Manitoba' and the North- West Territories as it 
stood on the 15th of July, 18*70 ; and 

(e.) In British Columbia,- as it stood on the 19th of 
November, 1858. 



3 Jao.l, c. 7 (1605-6), Delivery by attorney of bill of costs ; James \. McLean (3 Allen, 
164). 

13 Car. 2, stat. 2, e. 2, s. 10 (1061), Vexatious deliiys on writs of error ; Gilbert v. Snure 
(2 Alien, 512). 

9 Wm. 3. 0. 15 (1697-8), Arbitration ; Doe d. Allen v. Murray (2 Kerr, 359j ; Brown v. 
Harding (3 Allen, ;«1). 

ikh Anno, c. 3, s. 20 (1705) Assignment of bail bonds ; Per Chipman, C. J. in Doe d. 
Ifanington v. McFadden (Berton, 163). 

14 Geo. 2, c. 17, 8. 1 (1740-1) Judgments ns in case of non-suit ; Per Chipman, C- J. in 
Doe d. Uaniiigton v. McFudden (Berton, 103). 

' 51 Vict. (D) c. 38, s. 1 and R. S . C. o. 50, s. 11. 
•JR.S.C. c.l44,s.2. . 



14 A DIGEST OF 



CHAPTER II. 
' OF PUNISHMENTS. 

Article 3. 

punishment after conviction only. 

* Whenever a person who does or omits to do anything- 
is declared to be guilty oi' any offence, and to be liable to 
punishment therei'or, the meaning is that such person 
shall only be deemed guilty of such oifence and liable to 
such punishment after being duly convicted of such act 
or omission. 

Article 4. 

discretion of the court. 

^ Whenever it is provided that the offender is Hpble to 
different degrees or kinds of punishment, the punishment 
to be inflicted is, subject to the limitations contained in 
the enactment, in the discretion of the court or tribunal 
before which the conviction takes place. 

Article 5. 

offender punishable under two or more provisions. 

* Whenever any offender is punishable under two or 
more Acts, or two or more sections of the same Act, he 
may be tried and punished under any of such Acts or 

> [See 1 Hist. Cr. Law, ch. xiii, p. 451 j see Draft Code, Pt. II, ss. 7-8.] 
"- R.S.C.C. 181,8.1. 
^ R. S. C. 0. 181, 8. 2. 

< R. S. C. c. 181, s. 3 ; R. v. Sherman, 17 U- C C. P. 106; R. S. C c. 150, 8. 14; c 154, 
s. 2(2); c. 169,8.4; 0.171,3.4; 50 & 51 Vict. (D.)o. 45,g.l4; 51 Viet. (D.).o,31,s. 10. 



THE CRIMINAL LAW. 15 



sections, but no person shall Ix' twice pnnish(>d for tho 
samo olloiict'. 

Akticj.e 0. 
enumeration of tunisiiments. ' 

The followinj,^ puuishmonis arc inlliiitcd by tho law of 
Canada for the crimes hereinafter defined .-—Death, im- 
prisonment, whipping, lines, and putting under recog- 
nizance. 

AUTICLE T. 
PUNISHMENT OF DEATH. 

- |The punishment of death is inllicted by hanging the 
olfender by the neck till he is dead. 

Article 8. 
punishment of impuisonment. 

•' The punishment of imprisonment consists in the de- 
tention of the olfender in prison, and in his subjection to 
the discipline appointed for prisoners during the period 
expressed in the sentence. : • 

Imprisonment is of two kinds : * 

; (i.) Imprisonment with hard labor. 

(ii.) Imprisonment ^vithout hard labor.] 

' SeoS. D., Art. ]. 

= R. S. C. c. 181, M. 6, (■■, : 54 Geo. 3, c. H6, s. 1 : 24 & 25 Vict., c. ICO, s. 2; S. D. Art. 2. 
With respect to the pronouncing of sentence of death, tlie judge's report, 'the treatment 
of prisoners under sentence of death, and tho carrying of the same into execution, see R. 
S. C. c. 181, ss. 4-22 and tlie rules published with the Acts of the Parliament of Canada 
relating to the Criminal Law (1881) p. 199. 

As to the judge's report and postponing execution in the North-West Territories and the 
District of Keewatin, see R. S. C. c. 50, s. 70, smd c. 53, s. 27 (5). 

[As to the history of the punishment of death and benefit of clergy, see 1 Hist. Cr. Law, 
467-80. J 

■' R. 8, 0. 0. 181,8. 28 (7) ; S. D. Art. 4. [As to the history of the punishment of imprison- 
ment, Bee 1 Mist. Or. Law 483-7J. Solitary conlinement, except as a matter of prison dis- 
cipline or retormation, was abolished by R. S. C. s. 181, s. 34. 



IG A DIGEST OF 



^ Every oue who is liable to imprisonment for life or 
for any term of years, or other term, may be sentenced to 
imprisonment for any shorter term : Provided, that no 
one shall be sentenced to any shorter term of imprison- 
ment than the minimum term, if any, prescribed for the 
oiFence of which he is convicted. 

^ Every one who is sentenced to imprisonment for life, 
or for a term of years not less than two, must be sentenced 
to imprisonment in the penitentiary for the Province in 
which the conviction takes place : 

Every one who is sentenced to imprisonment for a term 
less than two years must if no other place is expressly 
mentioned, be sentenced to imprisonment in the com- 
mon gaol of the district, county or place in which the 
sentence is pronounced, or if there is no common gaol 
there, then in that common gaol which is nearest to such 
locality, or in some lawful prison or place of confinement 
other than a penitentiary, in which the sentence of im- 
prisonment may be lawfully executed : 

But any prisoner sentenced for any term b any 
military, naval or militia court martial, or by any military 
or naval authority under any Mutiny Act, may be sen- 
tenced to imprisonment in a penitentiary. 

The term of imprisonment, in pursuance of any sen- 
tence, shall, unless otherwise directed in the sentence, 
commence on and from the day of passing such sentence, 
but no time during which the convict is out on bail shall 
be reckoned as part of the term of imprisonment to which 
he is sentenced. 

Article 9. '^ 
hard labor. 
* Imprisonment in a penitentiary, in the Central Prison 

'- B. S. C. 0. 181, s. 26, . ^ ^_ 

2R. S. C. c. 181, s. 28 (1). (2), (3), (6). 
8S. D., Art. 6. ■'^^^ 

*R.S.C. 0.181,8.28 (4), " '" 



THE CRIMINAL LAW. 17 



for the Province of Ontario, in the Andrew Mercer On- 
tario Eeformatory for females, and in any reformatory 
prison for females in the Province of Quebec, is with aard 
labor, whether so directed in the sentence or not : 

' Imprisonment in a common gaol or a public prison 
other than those last mentioned, — 

[a.) may be with or without hard labor in the discre- 
tion of the court or person passing sentence if the offender 
is convicted on indictment or under " The Speedy Trials 
Act,'' or before a Judge of the Supreme Court of the North- 
West Territories ; 

(/;.) may in other cases be with hard labor, if hard labor 
is part of the punishment for the offence of which such 
offender is convicted. 

And if such imprisonment is to be with hard labor the 
sentence must so direct. 

'^ Article 10. 
reformatories. 

' The court or person before whom any offender whose 
age at the time of his trial does not, in the opinion of the 
court, exceed sixteen years is convicted, whether sum- 
marily or otherwise, of any offence punishable by im- 
prisonment, may sentence such offender to imprisonment 
lu any reformatory prison in the Province in which such 
conviction takes place, subject to the provisions of any 
Act respecting imprisonment in such reformatory ; and 
such imprisonment shall be substituted, in such case, for 

' R. S. C. c. 181, s. 28 (5) as enacted in 51 Vict. (D.) o. 47, 3. 1. 
-S.D. Arts. 10, 21. 

'R.S.C c.l8],s.29; 29 A 30 Vict, c 117, s. 14. As to the imprisonment of boys under 
sixteen and females in reformatories see R. S. C. c. 183 ss. 25-30 (Ontario Reformatory for 
ooys, ; S8. 31-38 (The Andrew Mercer Ontario Reformatory for females) ; ss. 39-41 (The 

OntanoIndustrialRefngeforgirls); ss.42.48(QeneralproyiBion8inre8pectof snchreform- 
atones): 3s. 49-54 (Reformatory School for Boys in Quebec); ss. 55-58 (Reformatory 
pnsons for females in Quebec) ; ss. 61-64 (The Halifax Industrial School) ; ss. 65-71 (The 
ualitax Reformatory School for boys of the Roman Catholic faith) ss. 72-74 (Reforma- " 
tory pnson Prince Edward Island). 







18 A DIGEST OF 



the imprisonment in the pi'uitentiary or other place of 
confinement by which the ollender would otherwise be 
punishable under any Act or law relating thereto : 

Provided, that the sentence must not in any case be 
less than two years nor more than five years' confinement 
in such reibrmatory prison ; and in every case where the 
term of imprisonment is fixed by law to be more than five 
years, then such imprisonment must be in the penitentiary. 

Every person imprisoned in a reformatory is liable to 
perform such labor as is required of such person. 



'Article 11. 



WHIPPING. 

- "Whenever whipping- may be awarded for any offence, 
the court may sentence the offender to be once, twice or 
thrice whipped, within the limits of the prison under 
the supervision of the medical officer of the prison ; and 
the number of strokes and the instrument with which 
they shall be inflicted shall be specified by the court in the 
sentence ; and, whenever practicable, every whipping shall 
take place not less than ten days before the expiration of 
any term of imprisonment to which the offender is sen- 
tenced for the offence : 

Whipping shall not be inflicted on any female. 



•S.D.Artl2. 

-R.S.C. c.181,8. 30. 

[When no special provisioiii arc made as to the punishment o." whipping, the number of 
strokes and the instrument to be used are left to the discretion of the person by whom 
the whipping is inflicted. Such was the practice when whipping was inflicted as a com- 
mon law punishment, and .such must still be tho practice whore no statutory directions 
are given as to the mode of inflicting it. The only limitation is contained in the de- 
claration of the Bill of Rights against " illegal and cruel punishments " (1 W. & M. 
sess. 2, 0. 2, preamble). 

As to the law in England see S.D. Art. 12 and notes. 25 <& 26 Vict. o. 18, s. 1 ; 21 & 25 
Viot. 0. 96, 6. 119 ; o. 97, s. 75 ; c. 100, s. 70 ; 26 & 27 Vict. c. 44, s. 1. 



THE CRIMINAL LA W. 19 



' Article 12. 

FINE. 



[The punishment of fining consists in ordering the 
offender to pay to Her Majesty a sum of money expressed 
in the sentence.] 

' Every one who is convicted of any misdemeanor may, 
in addition to or in lieu of any other punishment other- 
wise authorized, be fined. 

'Whenever a fine may be awarded or a penalty im- 
posed for any offence, the amount of such fine or penalty 
is, within such limits, if any, as are prescribed in that 
behalf, in the discretion of the court or person passing 
sentence or convicting, as the case may be. 

'[When no particular sum is limited as the maximum 
amount of a fine, the fine imposed must not be excessive. 

•'* Article 13. 

PUTTING UNDER RECOGNIZANCES. 

[The punishment of putting under recognizances con- 
sists in ordering the offender to promise to pay to Her 
Majesty a sum of money expressed in the recognizance if 
he breaks the condition thereof, and to find other persons 
to make a similar promise on his behalf and as his sureties. 

In eases in which the court or magistrate is authorized 
to require such securities, they may direct the offender to 
be imprisoned till he enters into the recognizance and 
finds the sureties.] 

"Every one who is convicted of any felony or misde- 

'SD.Art. 13. 

lOO.trif'"" ^^^''' ^^ ^=^''2^*^-25 Vict, c. 06,8. n7,c. 97,s.73.c. 98.8. 51.c. 99.8. 38,c. 

'R.S.C.clSl.s.SS. 

« n^'/ ^: '^''- ^' ''• ^- ^°° *''" ^'^»"'^ ^^''^^' ' Salvo contenemento suo.'J 
&■!> Art. 14. 

_^ II.S.C. c. 181. s. 31 : 24 & 25 Viot. o. 96. s. 117, o. 97. «. 73, c. 93, g. 51. c. 99. s. 38. c. 100.3. 



o2 



20 A DIGEST OF 



meaner may, in addition to or in lieu of any punishment 
otherwise authorized, be required to er^'^r into his own 
recognizances, and to find sureties, both or either, for 
keeping the peace and being of good behavior : but a per- 
son must not be imprisoned for not finding sureties under 
this provision, for any terra exceeding one year. 

^ "Whenever any person w^ho has been required to enter 
into a recognizance w^ith sureties to keep the peace and bo 
of good behavior has, on account of his default therein, 
remained imprisoned for two weeks, the sheriff, gaoler or 
warden shall give notice, in writing, to a judge of a supe- 
rior court, or to a judge of the county court of the county 
or district in which such gaol or prison is situate, and in 
the cities of Montreal and Quebec to a judge of the ses- 
sions of the peace for the district, and such judge may 
order the discharge of such person thereupon, or at a 
subsequent time, upon notice to the complainant or other- 
wise, or may make such other order as he sees fit, respect- 
ing the number of sureties, the sum in which they are 
bound, and the length of time for w^hich such person may 
be bound. 

»K.8.C. c. 181,8. 32 as enacted in 51 Vict. (D)c. 47. ;. 2. 



THE CRIMINAL LAW. 21 



CHAPTER III. 

'classification of crimes and general provisions as 
to their punishment— pardons dc 

^Article 14. 

treason, felony, and misdemeanor. 

[Every crime is either treason, felony, or misdemeanor. 
Every crime which amounts to treason or felony is so de- 
nominated in the definitions of crimes hereinafter con- 
tained. All crimes not so denominated are misdemeanors . ] 

Article 15. 

consequences of a conviction of treason or felony 
IN certain provinces. 

The consequences among others of a conviction of trea- 
son or felony, and of such conviction followed by sentence, 
are in the Provinces of Ontario, Quebec, Nova Scotia, New 
Brunswick, Prince Edward Island and British Columbia, 
as follows : — 

'* {a) On attainder for treason the offender forfeits forever 

' [2 Hist. Cr. Law.Ch. xx.p|). 192-6] 

-S.D. Art. 15. 

' 4 Steph. Com. (fith ed) 5U : 2 Uiiwk. c. 49. Doe d. Griffith v. Pritchard (5 13. & Ad. 765) 
EaitiBood V. McKcnzie (5 U.C O.S. 708). Attainder imports that extinction of civil rights 
and capacities which taVcos phveo whenever an olfenJer receives judgment of death or out- 
lawry for a capital otTencc. It is tiic immediate inseparable consequence (not of the 
conviction) but of such judgment (1 Steph. Com. (6th ed.) 456; 4 Stoph. Com. 543,551; 
Wharton's Law Lexicon Verh. nttatnder.) At common law, lands so forfeited were not 
vested in the actual pusse.ssioii of the Crown during the life of the offender without an 
office (2 Hawk. c. 49, s. 2) ; but by 33 lien. 8, c. 20, s. 3 it was provided th.it in cases of high 
treason the king shonld be deemed and adjudged in actual and real possession of the 
landiJ, tenements, hereditaments, usoj?, goods, chattels and all other thngs of the person 
attainted that the king ought lawfully to have, and the offender to forfeit, without ary 
office or inquisition ; (2 Hawk. c. 40, ss. lS-32 ; Uue d. Gillespie v. Wixon, 5 U. C. Q. B. 
132 ; Doe d. Sheldon v. li'iimau, 9 U. C Q. B. 105). 



22 A DIGEST OF 

to the crown all his lands and tenomonts of inheritance 
of freehold tenure whether fee simple or fee tail and all 
his rights of entry on lauds and tenements of such ten- 
ure, which he had at the time of the offence committed, 
or at any time afterwards, to bo forever vested in the 
crown ; and also the profits of all lands and tenements 
of such tenure which he had in own right for life or 
years so long as such interest shall subsist. 

The forfeiture relates backward to the time of the trea- 
son com "tted, so as to avoid all intermediate sales and 
incumbrances, but not those before the fact. 

' (h) On attainder for murder the offender forfeits to the 
crown not only the profits of his freehold estates during 
life, but also (in the case of lands held by him in fee 
simple, though not in the case of those held in tail) the 
lands themselves for a year and a day, with power to the 
crown of committing upon them what waste it pleases. 

^ (c) On a conviction of treason or any felony the offender 
forfeits to the crown his personal estate, but not such as 
he has as executor or administrator. 

■'' (d) On attainder for treason the blood of the offender 

> 4 Steph. Com. (6th ed.) 548 ; 2 Hawk. c. 49, s. 8 ; /^ e Bridg€» 1 M. & W. 149. 

-' 2 Hawk. c. 49, ss. 9-13 ; 4 Stci)b. Com. (6th ed.) 550 Bullock v Dodds, 2 B. & Aid. 25*. See 
also as to forfeiture of goods and chattels upon a fngam fecit and in other cases, 2 
Hawk. c. 49, ss. 14-17. But in modern timos it became unusual for the jury to find the 
flight, forfeiture being looked upon, since the vast increase of personal property, as too 
large a penalty for an offence to which a man is prompted by the natural love of liberty ; 
and by the statute of the United Kingdom 7 k 8, Geo. 4, c. 28, s. 5 it was provided that 
where any person should be indicted for any treason or felony, the jury empanelled on his 
trial should not be charged to inquire whether he fled for such treason or felony (4 Steph. 
Com. 6th ed. 550,551.) 

By K.S. C. , c 171, s. 187, it is provided that the jury em|)aneiled to try any person for 
treason or feloi-.y, shall not be charged to inquire concerning his lands, tenements or 
goods, nor whether he fled for .such treason or felony. 

No forfeiture accrues upon a summary conviction (4 Steph. Com., 6th ed. 550). 

It was once the pnetico for the grand jury, on indictments for homicide, to find the 
value and description of the instrument of death, to enable the crown or its grantee to 
claim the deodand (2 Steph. Com. Gih cd.580); but it is now the law that there shall, in 
respect of such death, be no forfeiture of any chattel which has moved to or caused the 
death of any human being ; (R. S. C, c 181, s. 35; 9 & 10 Vict. o. 62.) 

' 4 Steph. Com. (6th ed.) 550; 2 Hawk. c. 49, s. 47, et. s'q. By the common law the 
offender's blood was corrupted by attainder of treason or felony. By 7 Auno. c.21, s. 10 



THE ClilJIIXAL f.AW. 23 



is corrnpti'd both upvv^ards and downwards so that ho 
can neither inherit kinds or other hereditaments from his 
ancestors, nor retain those hi' is already in possession of, 
nor transmit thein by descent to any heir, but the same 
escheat.' 



(1708), it was enacted that after the death of the Pretender and his sons no attainder for 
treason sliould operate to the prejudiec of any other than t)ic offender himself ; but this 
provision (the operation of which was postponed by 17 (Jeo. 2, c. 39, s. 3 (1714), it is said 
was repealed by Si) & 40 Geo. 3, c. 03 (1800), (1 Stoph. Com. 6th ed. 4(50 note (m). Mr. 
Wicksteed, Q.C., formerly Law Clerk to the House of Commons, thinks, however, that 
such was not the effect of the latter statute (Taseh. Can. Crim. Acts, 1071). But whether 
it was or not would not bo material in any case arising in any Province of Canada other 
than Hritish Columbia ; Art. 2 (c). 

It is also doubtful whether, in the other Provinces mentioned in this ArtiolOi the law is 
as stated in clause (d). Tasch. Can. Crim. Acts, 1009-1074 ; 2 Hawk- 649 note (1). What 
on this subject is the law of England that by virtue of statutes, or the rules governing 
the application of that law to colonies (Art. 2 in) {!/) and (c) ) is to be applied to the 
Provinces mentioned '.' Is it the common law, as represented in the text and recognized as 
existing by 7 Anne.c- i:l, or the law as therein declared, namely, thiit after a date inde- 
linite, but certain of determination, and since doterminod (lSi)7;, corruption of blood for 
tretison should be abolii-hed ? 

There are, I think, no decisions, but the Parliament of Canada, following the Parlia- 
ment of the United Kingdom, has in its legislation assumed that the comn.on law on this 
subject isin force in Canada. ]3y R. S. C, c. 181, ss. 30 and 37 (82 & 33 Vict. (D.) c. 29, 
ss. 00 and 56 ; 54 Geo. 3, c. 1'.5), it is provided that— 

"36. Except ill cuien c' treason, or of abetting, procuring or counaelling the same, no 
" attainder shall extend to tha disinheriting of any hein or to the prejudice of the right 
" or title of any person, other than the right or title of the offender during his n.atural 
" life only." 

'' 37. Every one to whom, after the death of any such offender, the right or interest to 
" or in any lands, tenements or hereditaments should or would have ai>pertaincd if no 
" such attainder had taken place, may, after the death of such offender, enter into the 
'' same." 

deferring to these provisions and to Articles 32-36 of the Civil Code of Quebec, Mr. 
Justice Taschcreau suggests a ((uest'on as to the legislative authority of tlio Parliament 
of Canada in respect of the consequences of attainder ; (Tasch. Can. Crim. Acts, 1073). It 
is not doubted) however, thai the Parliament of Canada may deprive an offender of life 
or liberty, or impose on him any fine or forfeiture that to it seems meet. That is con- 
stantly done without question, and it is submitted that to legislate in respect of other 
consequences of crime, and to abolish or restore corruption of blood therelor, is equally 
legislating in respect of the criminal law, as in the ciuses mentioned, and no greater inter- 
ference with property or civil rights in the Provin(io than in such cases. 

In the statute 54 Geo. 3, c. 145, attainder for murder was also excepted. Sec also 3 k i 
Wm. 4 c. 106,8. 10. 

' Escheat should be carefully distinguished froin forfeiture to the crown, as the conse- 
(luences, by reason of their similitude in such cases, and because the crown is freiiucntly 
the immediate lord of the fee and therefore entitled to both, have often been confounded 
together ; (1 Steph. Com., 6th ed. 457). 



24 A DIGEST OF 



^ Article 1G. 

consequences of a conviction of treason or felony 
in manitoba and the north-west territories. 

The consequences, among others, of a conviction of 
treason or felony in the Province of Manitoba and the 
North- West Territories are, so far as such provisions are 
applicable thereto, as follows : 

[{a.) ' Every person convicted of treason or felony may be 
condemned to the payment of the whole or any part of 
the costs and expenses incurred in and about his prose- 
cution and conviction. 

(b.) ' Immediately upon the conviction of any person for 
felony, the court before which he is convicted may award 
any sum of money not exceeeding .£100, by w^ay of satis- 
faction or compensation for any loss of property suffered 
by any person through or by means of such felony, upon 
the application of such person. Such sum is to be deemed 
to be a judgment debt due to the person entitled to receive 
the same from the person so convicted. 

(c.) ' Every person sentenced to u ^ath, to penal servitude, 
or to any term of imprisonment with hard labor, or 
exceeding twelve months : 

(i.) Becomes incapable of holding any military or naval 
office, or any civil office under the crown, or other public 
employment, or any ecclesiastical benefice, or of being 
elected, or sitting, or voting as a member of either House of 
Parliament, or of exercising any right of suffrage or other 
parliamentary or municipal franchise whatever in Eng- 
land, "Wales, or Ireland. 

1 S. D. Art. 16. 

- [ 33 »lk 34 Vict. c. 23, s. 3. The section contiiina various subsidiary provisions as to coists, 
which do not bear on the punishment of the oflfonce. See 1 Hist. Cr. Law, 487-9.] 

This Act came into force on the 4th of July 1870. See Art. 2 (</.) It does not affect the 
law of forfeiture consetiuent upon outlawry which in Manitoba and the North-Wcst 
Territories is as indicated in rhc article next preceding. 

I" 33 & 34 Vict, c, 23, s. 4. ■* 33 & 3i Vict. c. 23 s. 2.] 



THE CRIMINAL LAW. 25 

[Such incapacity continues until such person has suifered 
the punishment to which he has been sentenced, or such 
other punishment as by competent authority may be sub- 
stituted I'or the same, or until he receives a free pardon 
from Her Majesty. 

(ii.) If any such person holds, at the time of his convi<'- 
tion, any military or naval oflice, or any civil office under 
the crown, or other public employment, or any ecclesias- 
tical benefice, or any place, office, or emolument in any 
uuiversity, college, or other corporation, or is entitled to 
any pension or superannuation allowance, payable by the 
public or out of any public fund ; such office, benefice, 
employment, or place, forthwith becomes vacant, and such 
pension or superannuation allowance, or emolument, forth- 
with determines and ceases to be payable, unless such 
person receives a free pardon from Her Majesty within 
two months after such conviction, or ' before the filling up 

of such office, benefice, employment, or place, if given at 
a later period. 

{(I.) ■ Every person sentenced to death, or to penal ser- 
vitude, or against whom sentence of death is recorded, is 
disabled from suing any person, from alienating or charging 
any property, and from making any contract. 

{e.) ^ The custody and management of the property of 
any such person may be committed to an administrator, or 
interim curator, appointed in the manner and invested 
with the powers described in the statute, 33 & 34 Vict, 
c. 23. 

(/.) ^ Any person subject to the provisions of clauses (d.) 
or (e.) ceases to be affected by them when he dies, or is 
made bankrupt, or has suffered any punishment to which 
sentence of death has been commuted, or has undergone 
the full term of penal servitude to which he was sen- 

' [I suppose this moans if the pardon is given more tban two months after the conviction. 

° 33 & 31 Vict. 0.23. s. 8. ._ - 

'^ See ss. 9-29 inclusive. " 

<33&;i4Viot.o.23,s.7.] 



26 A D fa EST OF 



[tenced, or such other puiiishmout as may have been sul)- 
stitutcd I'or it by iawt'ul authority, or receives Her Majesty's 
pardon.] 

' Article lY. 

IMPRISONMENT WHERE THERE IS NO EXPRESS PROVISION. 

- Every one who is convicted of any felony for which 
no punishment is specially provided, is liable to impri- 
sonment for life. 

Every one who is convicted on indictment of any mis- 
demeanor for which no punishment is specially provided 
(other than fraud, cheating and conspiracy), is liable^ to 
five years' imprisonment. 

' Every one who is convicted of fraud, or of cheating, 
or of conspiracy, is liable to seven years' imprisonment, 
if no special punishment is provided by statute. 

' Every one who is summarily (convicted of any oiFence 
for which no punishment is specially provided, is liable 
to a penalty not exceeding twenty dollars, or to imprison- 
ment, with or without hard labor, for a term not exceed- 
ing three months, or to both. 

' Article 18. 

previous convictions. 

'' Every one who is convicted of felony, not punishable 
with death, committed after a previous conviction for 
felony, is liable to imprison: -ent for life, unless some other 

' S. D. Arts. 18, 22.] 

■^ R. S. C. 0. 181, g. 21 [7 & 8 Geo. 4, c. 28, ss. 8, 9 modified by 7 Wm- 4 & 1 Vict. o. 90, 
s. 5 ; 9 & 10 Vict., c 24, s. 1 ; 16 & 17 Vict. c. 99 ; 20 <fc 21 Vict. c. 3.] There are also 
certain limitations as to the term of imprisonment, &o., where the offender is tried in 
a particular manner, as for instance where he is tried under Thv Summari/ Trials Act 
(R. S. C. c. 176, 83. 10, 11), or summarily by a stipendiary magistrate in the District of 
Keewatin for certain offences defined in R. S. C, c 63,'8. 26. . - _ , _ 

■' R. S. C. c. 173, s. 26. 

^R. S. 0.0.181,8.24. 

^S.D. Art. 19. "'' " ...-..:,- 

R. S. C. c. 181, s. 25 ; 7 cfe 8 Geo. 4, c. 28, s. 11, 



THE CltTMlNAL LAW. 



])imishmont is tlirec^tod by auy statute for the particular 
olfence, — in which case the offender is liable to the 
punishment thi»reby awarded, and not to any other. 

' AllTICLE 10. 
CUMULATIVE PUNISHMENTS. 

- When an offender is conYicted of more offences than 
one, before the same court or person at the same sitting, 
or when any offender, under sentence or undergoing 
punishment for one offence, is convicted of auy other 
olfence, the court or person passing sentence may, on the 
last conviction, direct that the sentences passed upon the 
oH'cader for his several offences shall take effect one after 
another. 

Article 20. 

conditional release of first offenders.'' 

In this Article the expression " court " means and in- 
cludes any superior (30urt of criminal jurisdiction, any 

'S.D.Art.23. 

- R. S. C. c. 181, 8. 27. Tliis section, which is substantially in the terms of the first clause 
of the 17th section of the Draft Code, is, as to felonies, founded on M & ."iS Vict. (D.) c. 29, 
?. 02, and as to misdemeanors on the common law. 32 & 3.'5 Vict. (D.) c. 29, s. 92 is taken 
from 7 & 8 Geo. 4, c. 28, s. 10- 

[Wlien felonies as a rule wore capital, there could be no cumulative sentences in regard 
of them, whether they wore charged in different indictments or in different counts of the 
same indictment. If they were clinrged in separate indictments, the i)risoner having 
been convicted and sentenced on one, might plead " autrefois attaint" to any subsequent 
charge. There was no use in passing two sentences of death upon him, (see Chitty's 
Criminal L:iw, 463). If two felonies wore charged in one indictment, the prosecutor was 
put to his election -as indeed ho still is. AVhon death ceased to be the punishment for 
felonies as such (7 & 8 Geo. 4, c. 28, s. 7) it was necessary to raalso provision for the 
punishment of persons already under sentence. Hence tlio provision in the text. Cumu- 
lative punishment in cases of misdemeanor depends on the common law principles. See 
opinion of the judges in Wilkes'n Case, 10 St. Tr. 1132-3, and 7f. t). Ca-sfco, L. R. 5 Q. 
15.D. 49P. In the case of Kenwick Williams (1 Loach, 529, a.t>. 1790) cumulative sentences, 
amounting in all to six years' imprisonment, were passed upon three indictments for 
similar offences.] 

' 52 Vict. (D.) 0. 44 ; 50 & 51 Vict. c. 25. The court may direct the offender to pay the cost 
of prosecution or a portion thereof ; s. 2 (2). See also ILS.C. c. 177, 88. 14, 15. 



28 A DIGEST OF 



"Judge" or "Court" within the meauiug of " Tfic Speedy 
Tfials ilc^" and any "Magistrate" within the meaning 
of " Tlie Summary Trials Act.'' 

In any case in which a person is convicted before any 
court of any offence punishable with not more than two 
years' imprisonment, and no previous conviction is proved 
against him, if it appears to the court before whom he is 
so convicted, that, regard being had to the youth, char- 
acter, and antecedents of the offender, to the trivial nature 
of the offence, and to any extenuating circumstances 
under which the offence was committed, it is expedient 
that the offender be released on probation of good conduct, 
the court may, instead of sentencing him at once to any 
punishment, direct that he be released on his entering 
into a recognizance, with or without sureties, and during 
such periods as the court directs, to appear and receive 
judgment when called upon, and in the meantime to keep 
the peace and be of good behavior : 

If a court having power to deal with the offender iu 
respect of his original offence or any justice of the peace 
is satisfied by information on oath that the offender has 
failed to observe any of the (;onditious of his recogniz- 
ance, such court or justice of the peace may issue a war- 
rant for his apprehension : 

An offender, when apprehended on any such warrant, 
shall, if not brought forthwith before the court having 
power to sentence him, bo brought before the justice 
issuing such warrant, or before some other justice in and 
for the same territorial division, and such justice snail 
either remand him by warrant until the time at which 
he was required by his recognizance to appear for judg- 
ment, or until the sitting of a court having power to 
deal with his original offence, or admit him to bail with 
a sufhcieut surety conditioned on his appearing for judg- 
ment : , 

The offender v/hen so remanded miiy be committed to 
a prison, either for the county or place in or for which 



THE CRIMINAL LAW. 29 



the justice remanding him acts, or for the county or place 
where he is bound to appear for judgment ; and the war- 
rant of remand shall order that he be brought before the 
court before which he was bound to appear for judgment, 
or to answer as to his conduct since his release : 

The court, before so directing the release of an offender, 
must be satisfied that the offender or his surety has a 
fixed place of abode or regular occupation in the county 
or place for which the court acts, or in which the 
offender is likely to live during the period named for 
the observance of the conditions. 

Article 21. 

PARDONS. 

' The Crown may extend the Royal mercy to any person 
sentenced to imprisonment by virtue of any statute, al- 
though such person is imprisoned for non-payment of 
money to some person other than the Crown. 

-"Whenever the Crown is pleased to extend the Royal 
mercy to any offender convicted of a felony punishable 
with death or otherwise, and grants to such an offender 
either a free or a conditional pardon, by warrant under 
the Royal Sign Manual, countersigned by one of the 
principal Secretaries of State, or by warrant tinder the 
hand and seal-at-arms of the Governor General, the dis- 
charge of such offender out of custody in case of a free 
pardon, and the performance of the condition in the case 
of a conditional pardon, shall have the effect of a pardon 
of such offender, under the Great Seal, as to the felony 
for which such pardon has been granted. 

But no free pardon, nor any discharge in consequence 
thereof, nor any conctx' onal pardon, nor the performance 
of the condition thereof, in any of the cases aforesaid, 

» R.S-C. c. 181, s. 38 ; 22 Vict, c 32, s. i. 

" R.S.C. 0. 181, B. 39 ; 7 & 8 Geo. 4, c. 28 s. 13 ; 9 Geo. 4, c. 32 8. 3. 



30 A DIGEST OF 



shall prevent or mitigate the punishment to which the 
offender might otherwise be lawfully sentenced, on a sub- 
sequent conviction for any felony or offence other than 
that for which the pardon was granted. 

AUTICLE 22. 
COMMUTATION OF SENTENCE. 

' The Crown may commute the sentence of death, pass- 
ed upon any person convicted of a capital crime, to im- 
prisonment in the penitentiary for life, or for any term of 
years not less than two years, or to imprisonment in any 
other gaol or place of confinement for any period less than 
two years, with or without hard labor ; and an instru- 
ment under the hand and seal-at-arms of the Governor 
General, declaring such commutation of sentence, or a 
letter or other instrument under the hand of the Secretary 
of State, or of the Under Secretary of State, shall bo suffi- 
cient authority to any judge or justice, having jurisdiction 
in such case, ot to any sheriff or officer to whom such 
etter or instrument is addressed, to give effect to such 
commutation, and to do all such things and to make such 
orders, and to give such directions, as are requisite for the 
change of custody of such convict, and for his conduct to 
and delivery at such gaol or place of confinement or peni- 
tentiary, and his detention therein, according to the terms 
on which his sentence has been commuted. 

Article 23. ":: 

undergoing sentence equivalent to a pardon. 

^ When any offender has been convicted of an offence 
not punishable with death, and has endured the punish- 
ment to which such offender was adjudged, or if such 

' 11,8.0.0.181,8.40. 

-R.S.C.C. 181s. 41;9aeo. 4 c. 32 s. 3. -— — — . „_._._-. 



THE CRIMINAL LAW. 31 



ofFeuco is punishable with death and the sentence has 
been commuted, then if such offender has endured the 
punishment to w'^hich his sentence was commuted, the 
punishment so endured shall, as to the offence whereof 
the offender was so convicted, have the like effect and 
consequences as a pardon under the G-reat Seal ; but no- 
thing' herein contained, nor the enduring of such punish- 
ment, shall prevent or mitig;.te any punishment to which 
the offender might otherwise be lawfully sentenced, on 
a subsequent conviction for any other offence. 

' "When any person convicted of any offence has paid the 
sum adjudged to be paid, together with costs, under such 
conviction, or has received a remission thereof from the 
Crown, or has suffered the imprisonment awarded for 
non-payment thereof, or the imprisonment awarded in 
the first instance, or has been discharged from his con- 
viction by the justice of the peace in any case in which 
such justice of the peace may discharge such person, he 
shall be released from all further or other proceedings for 
the same cause. 

1 R.S.C. c. 181 s. il \ 24 k 25 Vict. c. flt) s. 100, c. 07 s. 07. 



32 A DIGEST OF 



CHAPTER IV. 

' GENERAL EXCEPTIONS. 

- Article 24. 

definitions subject to exceptions. 

[Every definition hereinafter contained of any crime is 
subject to the following general exceptions, except in the 
cases in which the contrary is expressed : — 

■' Article 25. 

children under seven. 

^ No act done by any person under seven years of age 
is a crime. 

■' Article 26. 

children between seven and fourteen. 

" No act done by any person over seven and under 
fourteen years of age is a crime, unless it be shewn aflBr- 
matively that such person had sufficient capacity to know 
that the act was wrong 

^ Article 21. 
insanity. 
^ No act is a crime if the person who does it is at the 

[See 2 Hist. Cr. Law, chaps, xviii, xix., pp. 94-186. See Draft Code, Pt. III. ss- 19-70.] 
S.D. Art.24. 
. 3 S.D. Art. 25. 

♦ [1 Hale P. C. 27-8 ; 1 Rusa. Cr. lOS ; Draft Code, s. 20.] 
6S. D.Art.26. 

« [R. V. Owen, 4 C. & 1' % ; and see cases collected 1 Rus3. Cr. 108-113 ; Draft Code, s, 20. J 
' S. D. Art. 27. 

* rrhe whole subject is discussed at full length in 2 Hist. Cr. Law, ch. xix. pp. 124-196. 
Cf. Draft Code, 8. 22.] 



THE CRTMINAL LAW. 33 



[time when it is done prevented ( ' cither by defective 
mental power or) by any disease affecting his mind. 
(a.) from knowing the nature and quality of his act ; 

or, 

(6.) from knowing that the act is - wrong ; ( or, ^ 
(c.) from controlling,'' his own conduct, unless the ab- 
sence of the power of control has boon produced by his 
own default,) 

But an act may be a crime although the mind of a per- 
son who does it is affected by disease, if such disease does 
not in fact produce upon his mind one or other of the 
effects above mentioned in reference to that act. 

Illustrations, 

(1.) A kills B under an insane delusion that he is breaking a jar. A's 
act is not a crime. 

(2.) A kills B knowing that he is killing B, and knowing that it is 
wrong to kill B ; but his mind is so imbecile that he is unable to form 
such an estimate of the nature and consequences of his act as a person of 
ordinary intelligence would form. A's act is not a crime if th« words 
within the first set of brackets are law. If they are not, it is. 

(8.) A kills B knowing that he is killing B, and knowing that it is ille- 
gal to kill B ; but under an insane delusion that the salvation of the human 
race will be obtained by his execution for the murder of B, ana that God 
has commanded him (A) to produce that result by those means. A's act 
is a crime if the word " wrong " hfis the second of the two meanings 
ascribed to it in the note.'^ It is not a crime if the word " wrong " has the 
first of those two meanings, 

(4.) A suddenly stabs B under the influence of an impulse caused by 
disease, and of such a nature that nothing short of the mechanical restraint 
(if A's hand would have prevented the stab. A's act is a crime if (c.) is 
not law. It is not a crime if (c.) is law. 

(5,) A suddenly stabs B under the influence of an impulse caused by 



' [The parts of the Article in parentheses are doubtful. 

* The word "wrong " is variously interpreted ns meaning ;— 1. Morally wrong. 2. Ille- 
gal. The practical effect of these differenoes is shown in Illustrations (4), (5), and (6). 

'In extreme strictness this ought to be, "If the word 'wrong 'has the Prst of these two 
meanings, the criminality of the act would depend upon the question whether the jury 
thousht that God's command under the circumstances altered the moral character of the 
act."] 

D 



34 A DIGEST OF 



[disease, and of such a nature that a strong? motive, as, for instance, the 
fear of his own immediate death, would have prevented the act. A's act 
is a crime wliether (c.) is or is not law. 

(G.) A permits his mind to dwell upon and desire B's death ; under the 
influence of mental disease this desire becomes uncontrollable, and A kills 
B. A's act is a crime whether (c.) is or is not law. 

(7.) A, a patient in a lunatic asylum, who is under a delusion that his 
linger is made of glass, poisons one of his attendants out of revenge for his 
treatment, and it is proved that the delusion iiad no connection whatever 
with the act. A's act is a crime. 



' AllTICLE 28. 
PRESUMPTION OF SANITY. 

^ Every person is presumed to be sane, and to be 
responsible for his acts. The burden of proving that he 
is irresponsible is upon the accused person ; but the jury 
may have regard to his appearance and behavior in court. 

'Article 29. 

drunkenness. 

* Voluntary drunkenness is not regarded as a disease 
affecting the mind within the meaning of Article 2*7 ; but 
involuntary drunkenness, and diseases caused by volun- 
tary drunkenness, fall, so far as they affect the mind, 
within that Article. 

If the existence of a specific intention is essential to the 
commission of a crime, the fact that an offender was 
drunk when he did the act which, if coupled with that 
intention, would constitute such crime, should be taken 
into account by the jury in deciding whether he had that 
intention. 

iS.D.Art. 28. 

2 [/?. V . Oa/ord, 9 C. A' P. 525 ; I{. v. Slokea, 3 C & K. 185 ; Drai t Code, 8, 22 ;] R.r. Riel, 
2Man. L. R. 321. 
^ »S.D. Art 29. 

^ [1 Ilale, P. C. 32-3. Illuetrations (1), (2), and (3) are founded on this passage.] 



THE CRIMINAL LAW. 35 



I Illmtraliong. 

[(1.) A, in a fit of voluntary drunkenness, shoots B dead, not knowing 
what he dots. A's act is a crime. 

(2.) A, under the intiuence of a drug fraudulently administered to bim, 
shoots B dead, not knowing what he does. A's act is not a crime. 

{?,.) A, in a fit of delirium tremens cr-used by voluntary drunkenness, 
kills B, mistaking him for a wild animal, attacking A. A's act is not a 

crime. 

' (4) A is indicted for inflicting on B an injury dangerous to life with 
intent to murder B. The fact that A was drunk when he inflicted the 
injury ought to be taken into account by the jury in deciding whether A 
intended to murder B or not. 



^Article 30. 
married women. 

° If a married woman commits a theft, or receives stolen 
goods, knowing them to be stolen, in the presence of her 
husband, she is presumed to have acted under his coercion, 
and such coercion excuses her act ; but this presumption 
may be rebutted if the circumstances of the case show 
that in point of fact she was not coerced. 

It is uncertain how far this principle applies to felonies 
iu general. 

It does not apply to high treason or murder. 

It probably does not apply to robbery. 

• [/;. V. Cnise, 8 C. & P. 540.] R. v. Dohcrti , 16 Cox, C. C. :506. 
- S. D. Art- 30. See Appendix, Note 1. 

• [1 Hiile, p. C. 45 ; I Hawk. P. C. 4 ; Jt. v. Hughes, 1 Russ. Cr. 147 ; R. v. Atkiwon, 1 
Russ. Cr. 141, 154 ; R v. Smith, J). & B. 553 ; R. v. Archer, 1 Moody, 143 ; R. v. Brooks, 
Dear. 184 ; R. v. Wardroper, Bell, C. C. 249. As to felonies in general, see 1 Russ. Cr. 139- 
141. As to high treason, murderand robbery, see 1 Kale, P. C. 45 ; Dalton, c. 157; 1 Hawk. 
P. C. 4 ; R. V. Buncov'he, I Cox, C. C. 183 ; but as to robbery, see Mr. Carrington's argument 
in R.v. CnMe,8C. &P.536. InR.v. Torpei/,Mr. Russell Gurney.Rcoorderof London, held 
tnat the doctrine applied to robbery, 12 Cox, C. C. 48-9; of. Draft Code, s. 23. As to mis- 
demeanors in general, see note to/?, v. Price, 8 C. & P. 20; and 1 Russ. Cr. p. 145, note (e.), 
5th ed. ; See too R. v. Torpev, 12 Cox, C, C. 48-9. As to uttering, see R. v. Price, 8 C. & P. 
IE*. As to false swearing, R. v. Dicks, 1 Russ. Cr. 141. As to the general doctrine, see 
Appendix, Note I. The principle is not affected by the Married Womens' Property Act, 
45 & 46 Vict., c. 75.] 

d2 



86 J DIGEST OF 



[It applies to uttoriug counterfeit coin. 

It seems to apply to misdemeanors generally. 

' AllTIOLE 31. 
COMPULSION. 

An act which it' done* willingly would make a person 
a principal in the second d(!gree and an aider and abettor 
in a crime, may be innocent if the crime is committed by 
a number of ollenders, and if the act is done only because 
during the whole of the time in which it is being done, 
the person who does it is compelled to do it by threats 
on the part of the - offenders instantly to kill him or do 
him grievous bodily ha:-m if he refuses ; })ut threats of 
future injury, or the command of any one not the husband 
of the offender, do not excuse any offence. 

Illustrations. 

•' (1.) A, B, and C, engaged in a rebellion, force D to join the rebel army 
and to do duty as a soldier by throats of death continuing during the 
whole of his service. D's act is not a crime. 

' (2.) A mob employed in breaking threshing machines force several 
persons to go with them, and force each person to give each threshing 
machine a bloAV with a sledge hammer : A, one of tho persons so forced, 
runs away as soon as he can. A's act is not a crime. 

•^Article 32. 

necessity. 

An act which would otherwise be a crime may in some 
cases be excused if the person accused can shew that it 
was done only in order to avoid consequences which could 

1 S. D. Art. 31. Draft Code, s. 23. 

2 [I Halo, p. C. 43-4, 49 ; and see Illustrations. 
» I{. V. McOrowther, 18 St. Tr. 394 »a. d. ITKi). 

■• Ji- y- Crutcliley, 5 C. & P. 133. The report says nothing as to the nature of the force. 
Probably it was by threats of personal violence. It is singular that the law upon this 
subject should be so very meagre. The subject is treated at some length in 1 Hale, cc- 
vii., viii-, and ix., pp. 43-52, but in a very unsatisfactory way. It would seem that in all 
common cases the fact that a crime is done unwillingly and in order to avoid injury, 
ought to affect rather the punishment than the guilt] 

6S.D. Art.32. 



THE CRTMINAL LAW. St 



[not oth(!r\viso be iivoidod, and which, if t hoy had Ibllowed, 
would have inllicted upon him or upon others whom he 
was bound to protect incvitabh' and irreparable evil, that 
uo mon^ was done than was reasonably ncM^essary for that 
purpose, and that the evil indicted by it was not dispro- 
portionate to the evil avoided. 

' The extent of this principle is unascertained. It does 
not extmid to the '-ase of shipwrecked sailors who kill a 
boy, one of their numbi'r, in order to eat his body. 

I \IL V. Dudlfv li- Stephens, L. 11. II Q. B. D. 273. In this case the Court commented on 
the passage in the text, iind Lord Coleridge in delivering judgment said (p. '286), " We 
have the best antliority for sayiiit; that " my " hingiiago was not meant to cover tlio case 
then under consideration." I authorized this stntomont, and on consideration I feel that 
my liuiRuaKe was not vague enougli— vague as it was— to represent fully the vagueness of 
the law. I have slightly altered it, so as to make it more vague. I should have agreed 
with the rest of the Court had I boon a member of it in R. v. Dmlleu, though not in all 
the reasoning of the judgment. I should have based my judgment on the fact that the 
.special verdict found only that if the boy had not been killed and eaten, the survivors 
*' MiouXiXprohahhi not have survived" ; and on thoi)rinciplo that in this particular class of 
cases an error on the side of severity is an error on the safe side. (}reat danger would be 
involved in admittii-.g a principle which might be easily abused. 1 cjuld not go so far as 
to say, as the judgment delivered by Lord Coleridge says, that any case can impose on a 
man " a duty " (if the word means a legal duty) " not to live but to die." Nor do I agree 
with what is said on p. 237, which appears to me to base a legal conclusion upon a ques- 
tionable moral .and theological {'(mndation, and to bo rhetorically expressed, " It would 
be ii very easy and cheap display of commonplace learning" (it is said with obvious truth) 
to "quote from" four specified Greek and Latin authors, passage after passage in 
which the duty of dying for others has been laid down in glowing and emphatio language 
as resulting from the principles of heathen ethics. It is enough in a Christian country to 
remind ourselves of the Great Example whom we profess to follow. Whatever estimate 
may be formed of solf-saorifloe, it seems to me to be a duty of which the law can take no 
notice, if indeed it is a duty at all, which is not a legal question. I can discover no prin- 
ciple in the judgment in ]L v. Dwdvy. It depends entirely on its peculiar facts. The 
boy was deliberately put to death with a knife in order that his body might be used for 
food. This is quite ditt'ercnt from any of the following cases— (1) The two men on a plank. 
Here the successful man does no direct bodily harm to the other, lie leaves him the 
chance of getting another plank. (2) Several men are roped together on the Alps. They 
slip, and the weight of the whole party is thrown on one, who cuts the rope in order to 
save himself. Here the question is not whether some shall die, but whether one shall live. 
(3j The choice of evils. The captain of a ship runs down a boat, as the only means of 
avoiding shipwreck. A surgeon kills a child in the act of birth, as the only way to save 
the mother. A boat being too full of passengers to float, some are thrown overboard. 
Such cases are best decided as they arise. See on the whole subject my History of 
Criminal Law, IL 108-15. In the United States (U. S. v. ifoZme*, 1 Wall. Jr. 1, quoted 
at length in Wharton on Homicide, s. 5(51), shipwrecked sailors and passengers escaping 
in a boat which could not hold all, the sailors threw some of the passengers overboard. 
The Court held that the passengers ought to have bee i preferred to the sulors, unless 



88 A DIGEST OF 



ItluMrationg. 

[(1.) ' A, the Governor of Madras, acts towards his council in an arbi- 
trary and illegal manner. The council depose and put him under arrest, 
and assume the powers of government themselves. This is not an offence 
if the acts done by the council were the only means by which irreparable 
mischief to the establishment at Madras could be avoided. 

(2.) '^ A and B, swimming in the sea after a shipwreck, get hold of a 
plank not large enough to support both ; A pushes off B, who is drowned. 
This is not a crime. 

•'Article 33. 

ignorance of law. 

* The fact that an ofFendor is ignorant of the law is in 
no case an excuse for his offence, but it may be relevant 
to the question whether an act which would be a crime 
if accompanied by a certain intention or other state of 
mind, and not otherwise, was in fact accompanied by that 
intention or state of mind or not. 

•'"' In interpretiug a statute which makes unlawful a con- 
tinuous act which till the statute passed was not unlaw- 
ful, it is to be presumed thai the legislature intended to 
allow a reasonable time for the discontinuance of the act 
so made unlawful, and the ignorance of the accused that the 
statute had been passed is a fact relevant to the question 
whether his discontinuance of it was within such reason- 
able time or not. 



[the presence of the siiilois was required for the common safety, but " under any circum- 
stances it was held the proper method of detcrnuning who was to be the first victim out 
of the particular class was by ballot." I doubt whether an English Court would take 
this view. It would bo odd to say that the two men on the raft were bound to toss up as 
to which should go. 

' R. V. Strattm><(; Others, 21 St. Tr. 1045 ; see Lord Mansfield's judgment, pp. 1222-6. 

- Bacon's Maxims, No. 5.] 

•'S. D.Art.33. .,-___...,.,,,. ,.,„,^. 

MDraft Code, s. 24.] B.v. Maillonx.SPags.m. 

'• [See Illustration '3). See also Thompson y. Fairer, L. R. 9 Q. B. D, 372. 



THE CRIMINAL LAIV. 39 



lllmtrvtiong. 

[(1.) 'A, ii foreigner unacquainted witli the law of England, kills B in 
a duel in England. A's act is murder, although he may have supposod it 
to be lawful. 

(2.) 'A, a poacher, sets wires for game, which are taken by B, a game- 
keeper, under tiio authority of an Acrt of Parliament (5 Anne, c. i4, s. 4), 
of the existence of which A is ignorant. A forcibly takes the wires from 
B, and is tried for robbery. His ignorance of the Act is relevant to the 
(juestion whether ho took the wires under a claim of right. 

(3.) ' A is in command of a ship on a voyage, which during its continu- 
ance is rendered unlawful by the passing of the kidnapping Act, 1872 
(35 & 36 Vict. c. ] 9), but A was not aware that the Act had been passed 
till a considerable time afterwards, and he continued his voyage in igno- 
rance of the Act. The fact of A's ignorance is relevant to the question 
w-liether the particular voyage in which A was engaged was one to which 
tl'ie Act was intended by the legislature to apply. 

^Article 34. 
ignorance of fact, 

Au alleged oflender is iu general deemed to have acted 
under that state of facts which he in good faith and on 
reasonable grounds believed to exist when he did the act 
alleged to be an offence. 

When an offence is so defined by statute that the act 
of the offender is not a crime unless some independent 
fact co-exists with it, the court must decide whether it 
was the intention of the legislature that the person doing 
the forbidden act should do it at his peril, or that his 
ignorance as to the existence of the independent fact, or 
his mistaken belief iu good faith and on reasonable grounds 
that it did not exist, should excuse him. 

Voluntary or negligent ignorance of any such fact is no 
excuse for any such offence. 

' [Ex parte Barmnet, 1 E. & B. 1. 

- R. V. Hall, 3 C. k P. 409. In It v. Heed, Car. & Mar. 303, Coleridge. J., said : " Igno- 
rance of the law cannot excuse any person, but at the same time when the question is 
with what intent a. person takes, we cannot help looking into his state of mind, as if a 
person takes what he believes to be his own it is impossible to say he is guilty of felony." 

'' Bunia V. Mwell, L. R. 5 Q. B. D. 414.J 

*S.I>, Art.34. 



40 A DIGEST OF 

[In cases of the infliction of bodily harm or restraint 
for the purpose of arresting or retaking a person honestly 
and reasonably, but erroneously, supposed to be liable to 
be arrested or retaken, the person inflicting such harm 
or restraint is not justifled by such belief, unless the state 
of facts in the existence of which he erroneously believed 
would, if it had really existed, have made it his legal 
duty to act as he did, or would have been such as to make 
his conduct an act of defence of his person or habitation. 

Illustratio7is. 

(1.) ' A, under an insane delusion, kills B. If the delusion is such that 
its truth would justify him in doing so, his act is not a crime. The delu- 
sion would also be evidence that A did not know he was doing .wrong even 
if its truth would not justifj' the act. 

(2.) - A, making a thrust with a sword at a place where, upon reason- 
able grounds, he supposes a burelar to be, kills a person who is not a 
burglar. A is in the same situation as if he had killed a burglar. 

(3.) ■' A abducts B, a girl under fifteen years of age, from her father's 
liouse, believing in good faith and on reasonable grounds that B is eigh- 
teen years of age. A commits the offence of abduction, although if B had 
been eighteen years of age she would not have been within the statute. 

(4.) * A, in the last illustration, abducts B, in ignorance of lier age, and 



• [.W'iV«(7/(toi'« rasc.lOCI. cV- Fin. 200. 

- Levet'n Case, 1 Ilalc, 474. 

« R. r. Prince, L. R. 2 C. C K. 151. 

■• 11. y. Prince, IhiA. See judgment of LJrett, J., p. 169, and see p. 174. It has been 
doubted whetber a person commits bigamy who contracts a second marriage under a bona 
fide belief that the first husband or wife is dead- In K v. Turner, 9 Cox, C. C. 145, Mar- 
tin, B., directed a jury that if a woman had an honest belief that her husband was dead 
she was not guilty of bigamy, and this ruling was followed by Cleasby, B., in It- v. Horton. 
11 Cox, n. C. 670. In It. V. Gihhom, 12 Cox, C. C 237, Brett, .L, iifter consulting Willes, 
J., held (si.ys the report) " that a bond fide belief that the husband was dead was no de- 
fence, unlesL the seven years had passed." In that case- however, the " bond fide belief " 
appears to have arisen solely from the fact that the woman had not heard of her hus- 
band for upwards of six years. It was thus a gratuitous belief, founded on ignorance 
It seems to mo that if the belief was founded on positive evidence the case would bo 
otherwise. Sui)pose, e.g.. a woman saw her husband fall overboard in the middle of the 
Atlantic, and saw a boat go out to search for him, and return without him ; suppose that 
she took out administration to his estate, heard nothing of him for five years, and then 
married again, would she be guilty of bigamy if by some strange chance he had escaped 1 
Surely not. I am informed that this view was taken by Denman, J., and Amphlett, J.A., 
in a case of It. v. Moore, tried at Lincoln S|)ring Assizes, 1877. I think the proviso in 24 
& 25 Vict., c. 100, s. 57] R. S C. 101, s. 4 (b). (Art. 330) [ought clearly to be read not as 



THE CRIMfNAL LAW. 41 



[without makinj; any inquiry about it. A commits the offence of abduction. 

(5.) > A received into her house, not being a registered lunatic asylum, 
several persons to be medically treated, being persons who were in fact 
lunatics, though A honestly believed on reasonable grounds that they 
were not lunatics but sufferers under other disorders. Notwithstanding 
such a belief, A committed an offence against 8 ct 9 Vict., c. 100, s. 14. 

(6.) ^ A, a constable, lioneslly and on reasonable grounds believing B 
to have committed murder, and not being able otherwise to arrest hinii 
shoots at him and kills him. A is justified. If A had been a private 
person his act would have been manslaughter at least. 

(7.) •' B, pretending by way of a pracitical joke to be a robber, presents 
an eaipty pistol at A and demands his money. A, believing that B really 
is a robber, kills B. A is justified. 

(8.) (Submitted.) A breaks into B's house in Cornwall, at 5.45 a.m., 
local mean time, supposing that it is past six, but forgetting that A's watch 
is set to London time. A commits burglary.] 



[excludiiii' the general common law principle stated in this Article, but as supplementing 
and completing it, by providing that a second marriagej after seven years' ignorance as to 
thelife of the first husband or wife, shall not bo criminal, although the party so marrying 
has no positive reason to believe, and perhaps does not believe, that the absent person is 
dead.] 

And it has since been so held. In R. v. Tohon, L. R. 23 Q- B. D. IfiS, in which the 
question was reserved by Stephen, J., to obtain the decision of the Couri in view of the 
conflicting opinions of single judges on the point, it was held by Lord Coleridgo, C-J. 
Hawkins, Stephen, Cave, Day, A. L. Smith, Wills, Grantham and Charles, JJ. (Denman. 
Field, and Manisty, JJ., .-vnd Pollock and Huddleston, BB., dissenting), that a bond fide 
belief on reasonable grounds in the death of the husband at the time of the second mar- 
riage, afforded a good defence to an indictment for bigamy, although the second marriage 
took place within seven years of the time when she last knew of her husband being alive. 

> [R. V. Bishoi,, L. R. 5 Q. B. D. 259. 

2 2 Hale, P. C. 82,85. 

■ 1 Halo, P. C. 474.] 



42 A DIGEST OF 



CHAPTER Y. 



' PARTIES TO THE COMMISSION OF CRIMES - PRINCIPAL 

AND ACCESSORY. 

-Article 35. 

principals in first degree. 

■^ [Whoever actually commits, or takes part in the actual 
commission of, a crime is a principal in the first degree, 
whether he is on the spot when the crime is committed 
or not ; and if a crime is committed partly in one place 
and partly in another, every one who commits any part 
of it at any place is a principal in the first degree. 

Illustrations. 

(1.) * A lays poison for B, which B takes in A's absence. A is a prin- 
cipal in the first degree. 

(2.) ^ A steals goods from a ship, and lays them in a place at some dis- 
tance, whence B, by previous concert, carries them away for sale. A and 
B are both principals in the first degree. 

'• Article 36. 

innocent agent. 

Whoever commits a crime by an innocent agent is a 
principal in the first degree. 

> [2 Hist. Cr. Law, oh. xxii, I). 221-241; Draft Code, ss. 71-74.] „ 

' 2 S. D., Art. 35. 

' [Foster, 347-5D, gives the history of the distinction between prinoipals in the first and 
second degree. See also Hale, ch.Uxxii. 1 P. C. 233 ; ch. xxxiv. 1 P. C. 435, and oh. Iv. 612. 

^ Foster, 349, says simply that A is "a principal," without mentioning the degree, but 
as no one has "aided" or "abetted," it would Eeem that he must be a principal in the 
first degree. 

6 E. V. Kelly, 2 C. & K. 379.] 

« S. D., Art. 36. 



THE CRIMINAL LAW. 48 



Illustrations. 

[(1.) 'A tells B, a child under eeven, to bring him money belonging to 
C. B does so- A is a principal in the first degree. 

(2.) "^ A, knowing a note to be forged, asks B, who does not know it to 
be forged, to get it changed for him. B does so, and gives A the money. 
A is a principal in the first degree. 

(3.) " B, in the last illustratioD, knows that the note is forged. A is an 
accessory before the fact. 

^Article 37. 
principals in the second degree. 

'' "Whoever aids or abets the actual commission of a 
crime, either at the place where it is committed, or else- 
where, is a principal in the second degree in that crime. 

^ Mere presence on the occasion when a crime is com- 
mitted does not make a person a principal in the second 
degree, even if he neither makes any eflfort to prevent the 
offence or to canse the offender to be apprehended, but 
such presence may be evidence for the consideration of 
the jury of an active participation in the offence. 

"When the existence of a particular intent forms part of 
the definition of an offence, a person charged with aiding 
or abetting the commission of the offence must be shewn 
to have known of the existence of the intent on the part 
of the person so aided. 

Illustrations. 

(1.) ^ A, B, C, and D go out with a common design to rob. A commits 
the robbery ; B stands by ready to help ; C is stationed some way off to 

' [li. y. Manlev, 1 Cox, C. C. 104 . 

- R.v. Palmer, muss. Cr. 160. 

' H.Y.Soares.K&n.'a.i 

<S.D.,Art.37. 

'•> [See cases in 1 Russ. Or. 156-59. li. v. Kellv, B. & R. 421, perhaps marks the limit 
between a principal in the second degree and an accessory. In that case B stole horses 
and brought them to A, who was waiting half a mile o£P; A and B then rode away on 
them. It was held that A was an accessory before the fact. The distinction is now of no 
importance. 

" R. V. Coney and Others, L. R- 8 Q. B. D. 534. See especially the judgmentof Cave, J., 
536-43,] li. V. Curtlev, 27 U. C. Q. B. 613. 

' [Poster, 850.] 



44 A DIGEST OF 



[give the alarm if any one comes. A is a principal in the first degree, B, 
C, and D are principals in tlie second degree. 

(2.) ^ B is indicted for inflicting on C an injnry dangerous to life with 
intent to murder. A is indicted for aiding and abetting B. A must be 
shewn to have known that it was B's intent to murder C, and it is not 
enough to shew that A helx)ed B in what ho did. 



-Article 88. 

common purpose. 

•'' "When several persons take part in the execution of a 
common criminal purpose, each is a principal in the second 
degree, in respect of every crime committed by any one of 
them in the execution of that purpose. 

If any of the offenders commits a crime foreign to the 
common criminal purpose, the others arc neither princi- 
pals in the second degree, nor accessories, unless they 
actually instigate or assist in its commission. 

Illustrations. 

(1.) ^ A constable and his assistants go to arrest A at a liouse in which 
are many persons. B, C, D, and others come from the house, drive the 
constable and his assistants ofl', and one of the assistants is killed, either 
by B, C, D, or one of their party. Each of the party is equally responsible 
for the blow, whether he actually struck it or not. 

(2.) '" Three soldiers go to rob an orchard. Tsvo get into a fruit tree. 
The third stands at the door with a drawn sword, and stabs the owner, 
who tries to arrest him. The men in the tree are neither principals nor 
accessories, unless all three came with a common resolution to overcome 
all opposition. 

(3.) " Smugglers fight with revenue officers. In the fight a smuggler 
fires a gun which kills another smuggler. The gun was not fired at any 
of the revenue officers. The man who fired the gun is responsible for the 
act, but not his companions. f. 

1 [W.v. C/-t«e,8C.&P.546.J 

2S. D.,Art.38. 

" [See cases referred to in the Illustrations. See also Post- 350-2; 1 Russ. Cr. 159-163, 
759-67. 

* Slusinghxirnt Houar Case, 1st Resolution ; 1 Hale, P. C. 462. 

'' Plummer'a Case, Foster, tS53. More fully reported in Kolynge, 155 (edition of 18"3). 
Lord Holt in his judgment fully explains the whole law. 

Ibid. 352.] 



THE CRIMINAL LAW. 45 

[(4.) ' Two parties of persons fight in the street about the removal of 
goods to avoid a distress. One of the persons engaged kills a looker-on, 
totally unconcerned in the affray. The other persons present are not 
responsible for his crime. 

(5.) '■' Two persons go out to commit theft. One, unknown to the other, 
puts a pistol in his pocket, and shoots a man with it. The other person is 
not responsible for the shot. 

(0.) ^ Three persons go out to practice with a rifle, and manage their 
practice so carelessly that a person is killed by a bhot fired by one of 
them : all aro guilty of manslaughter. 

'Article 39. 
accessories before the fact. 

' All accessory before the fact is one who " directly or 
indirectly counsels, procures, or commands any person to 
commit any felony or piracy ^ which is committed in 
consequence of such counselling, procuring, or command- 
ment. 

Every one who would have been an accessory before 
the fact if the crime committed, procured, or commanded 
had been a felony, is a principal if that crime is a misde- 
meanor. 

Knowledge that a person intends to commit a crime, 
and conduct connected with and influenced by such 
knowledge, is not enough to make the person who pos- 
sesses such knowledge, or so conducts himself, an acces- 
sory before the fact to any such crime, unless he does 
something to encourage its commission actively. 

Illustrations. ' 

(1.) "A supplies B with corrosive sublimate, knowing that B means to 

^ [R.y. Hodp807i and Others) lliGachiG. 

■ Per Park, J., Duffey's Case, 1 Lew. 194. H.;-.S'^<> 

3 R. V. Salmon, L. R. 6 Q. B, D. 79.] 

<S.D. Art. 39. 

^ [1 Hale. P. C. 615 ; 2 Hawk, P. C. 442 ; 1 Ru8?. Cr. 156-185. As to principals and accessories 
in forgery, see 2 Russ. Cr. 689. In the following Articles I use the word "instigate " as 
equivalent to " counsel, procure, or command. " Draft Code, s. 71. 

« R V. Cooper, 5 C. & P. 535-7. 

' 11 & 12 Will. 3,0. 7, 8. 9. 

* R. V. Fretieell, L. & C. 161. Contrast with this R, v. Ruasell, 1 Moody, 356.] 



46 A DIGEST OF 



[use it to procure her own abortion, but being unwilling that she should 
take the poison, and giving it to her because she threatened to kill herself 
if he did i.'ot. B does so use it and dies. Even if B is guilty of murder- 
ing herself, A is not an accessory before the fact to such murder. 

(2.) 1 B and C agree to fight a prize fight for a sum of money ; A, know- 
ing of their intention, acts as stakeholder. B and C fight, and C is killed. 
A is not present at the fight and has no concern with it except being 
stakeholder. Even if in such a case there can be an accessory before the 
fact, A is not accessory before the fact to the manslaughter of C. 

- Article 40. 
where crime suggested is committed in a different 

WAY. 

'' When a person instigates another to commit a crime, 
and the person so instigated commits the crime which he 
was instigated to commit, but in a different way from 
that in which he was instigated to commit it, the 
instigator is an accessory before the fact to the crime. 

lUxxstration. 

A advises B to murder C by shooting, B murders by stabbing. A is 
accessory before the fact to the murder of C. 

* Article 41. 

where crime committed is probable consequence of 

crime suggested. 

' If a person instigates another to commit a crime, and 
the person so instigated commits a crime different from 
the one which he was instigated to commit, but likely to 
be caused by such instigation, the instigator is an acces- 
sory before the fact. 

Illustrations. 
5 (1.) A describes C to B, and instigates B to murder C. B murders D, 



> [ft. V. Taylor, L. R. 2 C. C. R. 147.] 

2 S. D. Art. iO. 

8 [Foster, 369-70 ; Draft Code, s. 72.] 

* S. D., Art. «, 

6 [Foster, 370.] 



THE CRIMINAL LAW. 47 



[whom he believes to be C, because D corresponds with A's description of 
C. A is accessory before the fact to the murder of D. 

' (2.) A instigates B to rob C, B does so, C resists and B kills C. A is 
accessory before the fact to the murder of C. 

''■ (3.) A advises B to murder C (B's wife) by poison. B gives C a 
poisoned apple, which C gives D (B's child). B i)ermits D to eat theapple» 
which it does, and dies of it. A is not accessory to the murder of D. 

•' Article 42. 
where instigation is countermanded. 

' If an accessory before the fact countermands the 
execution of the crime before it is executed, he ceases to 
be an accessory before the fact, if the principal had notice 
of the countermand before the execution of the crime, but 
not otherwise. 

Illustration. 

* A advises B to murder C, and afterwards, by letter, withdraws his 
advice. B does murder C. A is not an accessory before the fact if his 
letter reaches B before he murders C ; but he is if it arrives afterwards. 

" Article 43. 

instigation to commit a crime different from the one 

committed. 

"When a person instigates another to commit a crime, 
and the person so instigated commits a different crime, 
the instigator is not accessory before the fact to the crime 
so committed. 

' [Foster, 370. 

- Saunders' Case, Plowd. 475 ; 1 Ilalo, P. C. 431. This decision is of higher authority 
than Foster's dicta, and marks the limit to which they extend, if it does not throw some 
doubt on them]. 

'S. D. Art. 42. 

^riHale, P. C. 618. In the case supposed, the instigator would probably have com- 
mitted the offence of inciting to the commission of a crime (Art. 50), though he would not 
be an accessory before the fact. It may also be doubted whether this doctrine would ex- 
tend to the case of a man who did his best to countermand his advice, but failed, as by an 
accident in the course of post, &c.] 

"S. D. Art. 43. 

»[Cf. Draft Code, s. 72.] 



48 A DIGEST OF 



Ilhtslratinn . 

' [A instigates Bto murder C, B murders D, A is not aeceHSory before the 
fact to the murder of D. 

- Article 44. 

accessories and principals in second degree treated 
as principals in first de(}ree. 

^Accessories before the fact, principals in the second 
degree, and principals in the first degree in any felony, 
are each considered as having committed that felony, and 
«^ach may be indicted, tried, convicted and punished as 
if he alone and independently had committed the lelony, 
although any other party to the crime may have been ac- 
quitted. 

'Article 45. 

accessories after the fact. 

'' Every one is an accessory after the fact to felony who 
knowing a felony to have been committed by another, re- 
ceives, comforts, or assists him, " in order to enable him to 
escape from punishment ; 

or rescues him from an arrest for the felony ; 

or having him in custody for the felony, intentionally 
and voluntarily suffers him to escape ; |' K 

or opposes his apprehension ; ■:':B 

ProAaded that a married woman who receives, comforts 

iCFoster.TO.s. l.J - 

= S.D. Art.44, 

H24 ife 25 Vict. c. 94,8. ?, as explained by/?, v. Hughes, Boll, C C. 242- The section 
referred to applies only to cases in which u felony has been committed, and does not affect 
the common law offence of inciting to commit a felony (Art. 50). 1{. v. Gregory, L. E. 1 
C. C. K. 77.] See R. S. C. c. 145, ss. 1, 2, 3 ; 11 & 12 Vict- c. 12, s. 8 ; 24 & 25 Vict. c. 96, s. 
98, c. 97, s.56,c. 98, s. 49, c- 99, s. 35; o. 100, s. 67. See also The Poat Office Act (R. S. C. 
c. 35) s. 110 (4) where it is provided that not only accessories before the fact but accessories 
after the fact to any felony defined in the Act may be tried as principals. 

*S.D. Art.45. 

i^a Rues. Cr. 171-4; 1 Hale, P. C. 618-20 ; 2 Hawk. P. C. Bk. II, c. 29; Dra*" Code, s. 73. 

*^ As to the addition of these words, see 2 Hawk. P. C Bk.'.II- c. 29, ss. 28-9J. 



THE CRIMINAL LAW. 49 



[or relieves her husband, knowing him to have committed 
a felony, does not thereby become an accessory after the 
fact]. 

' AliTICLE 46. 
PUNISHMENT OF ACCESSORIES AFTER THE FACT. 

- Every one vv^ho becomes an accessory after the fact to 
any felony, whether the same is a felony at common law 
or by virtue of any Act, may be indicted and convicted, 
either as an accessory after the fact to the principal felony, 
together with the principal felon, or after the conviction 
of the principal felon, or may be indicted and convicted of 
a substantive felony, whether the principal felon has or 
has not been convicted, or is or is not amenable to justice, 
and may thereupon be punishod in like manner as any 
accessory after the fact to the same felony, if convicted as 
jiu accessory, may be punished. 

* Every accessory after the fact to .mv felony (except 
when it is otherwise specially enacted), whether the 
same is a felony at common law, or by virtue of any Act, 
shall be liable to imprisonment for any term less than 
two years. 

Article 47. 

where principal felon has been convicted but not 

attainted. 

^ If any principal offender is, in any wise, convicted of 
any felony, any accessory, either before or after the fact, 
may be proceeded against in tne same manner as if such 
principal felon had been attainted thereof, notwithstand- 
ing such principal felon dies or is pardoned or otherwise 
delivered before such attainder ; and every such accessory 

» S. D. Art. 46. 

2 R. S. C. c. 145. 8. 4 ; 24 A 25 Vict. c. 94, s. 3. R. v. Fallon L. k C. 217. 

' R. S. C. n. 145, 8. 5 ; 24 & 25 Viot. o. 94, s. 4. 

♦ R. S. C. c. 145, 8. 6 ; 24 & 25 Viot. c. 94, s. 5. See Art. 15 note (3.) 

£ 



60 A DIGEST OF 



shall, upon conviction, suffer the same puiiishmont as he 
would have suffered it' the principal had been attainted. 

Article 48. 

misdemeanors. 

' Every one who aids, abets, counsels or procures the 
commission of any misdemeanor, whether the same is a 
misdemeanor at common law, or by virtue of any Act, is 
guilty of a misdemeanor and liable to be tried, indicted 
and punished as a principal offender. 

Article 49. 

offences punishable on summary conviction. 

'^ Every one who aids, abets, counsels or procures the 
commission of any offence punishable on summary con- 
viction, either for every time of its commission, or for the 
first and second time only, or for the first time only, shall, 
on conviction, be liable for every first, second or subse- 
quent offence of aiding, abetting, counselling or procur- 
ing, to the same forfeiture and punishment to which a 
person guilty of a first, second or subsequent offence as a 
principal offender, is liable. 

' R. S. C. e. 145, 8. 7 ; 24 & 25 Viot. o. 94, s. 8. It. v. Eim mde 23 U. C Q. B. 152. See also 
R. S. C. c. 35, 8. 110 (4) as to misdemeanors under 2'/te Post Office Act, 
- R. S. C. c. 145, 8. 8 ; 11 & 12 Viot. c. 43, s. 5 ; 21 & 25 Vict. o. 96, s. 99, and o. 97, s. 63. 



THE CRIMINAL LAW. 61 



CHAPTER VI. 

• DEGREES IN THE COMMISSION OF CRIME— INCITEMENT— 
CONSPIRA C Y-A TTEMPTS. 

^ Article 50. 

incitement to commit a crime. 

' [Every oue who iuoites any person to commit any 
crime commits a misdemeanor, whether the crime is or 
is not committed. 

^ Article 51. 

conspiracy to commit a crime. 

' When two or more persons agree to commit any crime, 
they are guilty of the misdemeanor called conspiracy, 
whether the crime is committed or not. 

"Article 52. 
definition of attempts. 
' An attempt to commit a crime is an act done with 

' [2 Hist. Cr. Law, oh. xxii, pp. 221-241]. 

- S. D. Art, 47. See Appendix, Note II. 

HR.v.Hiffgins, 2 East, 5-22; R.\. Schojkld, Cald. 397; R.V.Gregory, L. R. 1 C.C. 
77, III R, V, Leddington, 9 C. & P. 79, a man was charged with inoiting a man to commit 
suicide, and Aldcrson B.,, directed an acquittal, saying, "This is a case which by law we 
cannot try." The reasons for this direction are not given, and a note to the case does not 
make them clear. As to the case of 72. v. IVcMani, see Appendix Note II]. Everyone 
who incites any Indian to commit any indictable offence is guilty of felony and liable to 
five years' imprisonment. (R. S. C. c. 43, s. 112). Inciting a woman falsely to make an 
affidavit under C. S. U- C. c. 77, s. 6, that A is the father of her illegitimate child is a 
misdemeanor : R. v. Clement, 26 U. C. Q, B. 297. 

<S.D.Art.45. 

KlMulcahy v. R., L. R. 3 H. L. 317 ; R. v. Bunn, 12 Cox, C. C. 316 ; and see oases collected 
in Rosooe, Cr. Ev. 423-4]. R. v. Fellowea, 19 U. C. Q. B. 48 ; Jt. v. Rov, 11 L. C. J. 89 ; B. 
V. Downie, 13 R L 429 ; ^. v. Bunting, 7 0. R. 524. 

"S. D.Art.49. 

' [See oases referred to in Illustrations, and Draft Code, s. 74]. R. v. MoCann, 28 U. C. 
Q. 6. 514. An assanlt with intent to commit a crime is an attempt to commit such crime ; 
John V. R. 15 Can. S. C. 384. 

£2 



52 A DIGEST OF 

[intent to commit that crime, and forming part of a weries 
of acts which would constitute its actual commission if 
it were not interrupted. 

The point at which such a series of acts begins cannot 
be defined but depends upon the circumstances of each 
particular case. 

An act done with intent to commit a crime, the com- 
mission of which in the manner proposed was, in fact, 
impoHsibl*', is not an attempt to commit that crime. 

The oifence of attempting to commit a crime may b<i 
committed in cases in which the oH'ender voluntarily 
desists from the actual commission of the crime itself. 

Illmlraiions. 

(1.) 'A writes and sends to B a letter inciting B to commit a felony, B 
does not read the letter. A has attempted to incite B to commit a felony. 

(2.) ^ A procures dies for the purpose of coining bad money. A has at- 
tempted to coin bad money. 

(3.) •' B is a contractor for the supply of meat to a regiment. A is B's 
servant, and his duty is to return the surplus moat to B, after weighing 
out a certain allowance to each mess. By using a short weight, A sets 
aside, as surplus, sixty pounds instead of fifteen pounds, intending to steal 
the forty-five pounds, and return the fifteen pounds to B. A's fraud is 
discovered before he carries the meat away. A attempts to steal the 
forty-five pounds as soon as he sets aside the sixty pounds. 

(4.) * A, by false pretences as to the number of loaves he had delivered 
under a contract, obtains credit in account for the loaves, and would have 
been paid for them but for the discovery of the fraud. This is an attempt 
to obtain money by false pretences, as it was the last step depending on 
the defendant towards obtaining it. 

(5.) '•' A procures indecent prints with intents to publish them. A has 
attempted to publish indecent prints. {Semble.) 

(6.) * A goes to Birmingham to buy dies to make bad money. A has 
not attempted to make bad money. 



1 [B. V. Ran^ord, 81 L. T. (N.S.) 488. 

^Roberta' Case, Dearsley 0. C. 539. 

3 Cheeieman's Case, L. & C. 140. 

* ^. V. Eagleton, Dear. C. G. 615. 

6 Dugdale v. /?., 1 B. & B. 435 ; 7?. v. Dugdale, Dearsley C. C. 64. 

« Per Jarris, C.J., in RoberW Case, Dearsley C. C. 551. 



THE CRIMINAL LAW. 68 



[(7.) ' A havlnpf in hig possoasion indocont prints, forms an intent to 
pubiisli thoin. A has notatteniplod to publisli indecont prints. 

(8.) ' A mistaiiinK a loj? of wood for B, and intending to murder H, 
Btriitos the log of wood witli an axo. A liaa not attempted to murder 13. 

(9.) ''A puts Ilia hand into H's pocket with intent to steal whatever he 
finds there ; the pocket ia empty. A haa not attempted to ateal from B's 
person. 

(10.) •''A kneels down in front of a Htack of corn, and lighta a lucifer 
match, intending to aet the stack on fire ; but observing that he is watched 
blows it out A has attempted to aet lire to the stack. 

'Article 58. 
attempt — misdemeanor. 

Every attempt to commit an offence, whether treason 
felony, or misdemeanor,' is a misdemeanor, unless it is 
otherwise specially provided for.] 

' [Per Brainwell, B., in /;. v. MePhernon, D, .fc B. 20], 

- OolHn'x Cwctlt, & C. 471. It is submitted, however, that he has ooinmittod an assault 
un U with intent to oominit a felony, Article 314. 

^R. V. Tavlor, 1 F. & h\ 511.] See also /;. v. Guodnmn, 22 U. C. C. P. 338, Art. 565 
note (2). 

♦S.D.Art.59. 

^ [It is difficult to put a case of un attempt to commit treason, as un overt act done with 
intent to commit treason would generally be treason ; see the next Chapter. In the case 
of treasons defined in Art. 62 there might be an attempt. See many oases collected 
in 1 Russ. Cr. 190, and 2 Hist. Cr. Law, 221-7.1 



54 



A DIGEST OF 



PART II. 



OFFENCES AGAINST PUBLIC OEDER- 
AND EXTERNAL. 



-INTERNAL 



CHAP. VII— High Treason— Trea- 
sonable Felonies — Assaults on 
THE Queen, and othkr Offences 

AGAINST THE QuEBN's AUTHORITY. 

CHAP. VIII — Challenges— Prize 
Fighting — Affrays — Unlaw- 
ful Assemblies — Routs — Riots 
— Unlawful Drilling — For- 
cible Entry and Detainer — 
Unlawful Use and Possession 
OF Explosive Substances and 
Offensive Weapons-Preserva- 
tion OP THE Peace at Public 
Meetings and Elections and 



near PublicWorks — Unlawful 
Sale op Spirituous Liquors. 

CHAP. IX. — OpwBNCEs against In- 
ternal Tranquillity by Un- 
lawful Engagements and Com- 
binations AND Confederacies. 

CHAP. X. — Offences against Ex- 
ternal Public Tranquillity — 
Offences against Foreign Na- 
tions. 

CHAP. XI. — Offences against Per- 
sons ON the High Seas — Piracy 
—Slave-trading. 



=^ CHAPTER VII. 

HIOH TREAISON, TREASONABLE FELONIES, ASSA ULTS ON THE 
QUEEN, AND OTHER OFFENCES AGAINST THE QUEENS 

AUTHORITY. 

^Article 54. 

HIGH TREASON BY IMAGINING THE QUEEN'S DEATH. 

^ [Every one commits high treason who forms and dis- 
plays by any overt act, or by publishing any printing or 
writing, an intention to kill or destroy the Queen, or do 
her any bodily harm tending to death or destruction, 
maim or wounding, imprisonment or restraint. 

* [See 2 Hist. Or. Law, ch . xxiii. pp. 2«-97, and Draft Code, Part V.] 
> S. D. Art. 51. 

•-' [25 Edw. 3, St. 5, 0. 2 ; 36 Geo. 3, o. 7, 88. 1, 6 ; 57 Geo. 3, c. 6 ; U & 12 Vict, c 12, p. 3 ; 
Draft Code, s. 75.] R. S- C. o. 146, as. 1, 9. 



THE CRIMINAL LAW. 5& 



' Article 55. 

WHAT AMOUNTS TO IMAGINING THE QUEEN'S DEATH. 

^ Every one is deemed to have formed an intention to 
put the Queen to death who forms and displays by any 
overt act an intention, 

[a.) to depose the Queen from the exercise of her royal 
authority in any part of her dominions ; or 

{b.) to levy war against the Queen either in the first or 
in the second of the senses assigned to that expression in 
Article 56 ; or 

(c.) to instigate any foreigner with force to invade this 
realm or any other of the Queen's dominions ; or 

{d.) who conspires to levy war against the Queen in the 
first or second, but not in the third, of the senses assigned 
to that expression in Article 56. 

^Article 56. 

HIGH treason by LEVYING WAR. 

* Every one commits high treason who levies war 
against the Queen in any of her dominions. 

1 S. D. Art. 52. 

- [Foster's Discourse of II. T. ch. i, ss. 1-5, pp. 193-7 ; ch. ii, ss. 3, 4, 6, rp. 211-13 ; Draft 
Code, s. 75.] 

^iS-D-ArtSS. 

M25 Edw. 3, st. 5, 0. 2 ; Foster's Discourse on H. T. oh. ii, as to (a) see Foster, pp. 208 
and 209; as to (6.) see f>. 3; and see 36 Geo. 3, o. 7, s. 1, which, whilst in force, was a 
statutory recognition of Foster's doctrine : as to (c.) s. 4 : as to the proviso, seo 25 Edw. 3, 
St. 5, 0. 2, and Foster, pp. 209-10; seo also Note V., and Draft Code, 8. 75. In R.\. 
GaWaffAeranrfofAer«, 15 Cox, 291, it was held by Coleridge, C.J., Brett, M.R., and Grove, 
J., that war might be levied by a few persons using, for treasonable purposes, explosives 
calculated to do great damage. I held the same at Liverpool in the summer of 1883, in It. 
V. De<uy, 15 Cox, 334]. It has, however, been doubted whether it is treason to levy war 
against the Queen in one of her colonies or dependencies (1 Hale, o. xiv, 130-154. Finlason's 
Martial Law 2, note (6.) 190 note (6.) ; but see also pp. 12, 13.) The statute of Edward 
which was declaratory of the common law (Arch. P. k E. 20th Ed. 830) would, I think be 
held to be in force in Canada if the que!»' '.in were ever distinctly raised. See Art. 2 and 
K. S. C. c. 146, s. 9. It may, I think, be taken to be settled by the case of Louis Kiel (L. 
R. 10 App. Cas. 675), who was tried, convicted and executed for levying war against the 
Queen at Duck Lake and other places in the North- West Territories of Canada ant^ within 



56 A DIGEST OF 



The expression " to levy war " means — 

(a.) attacking in the manner usual in war the Queen 
herself or her military forces, acting as such by her orders, 
in the execution of their duty ; 

(b.) attempting by an insurrection of whatever nature 
by force or constraint to compel the Queen to change her 
measures or counsels, or to intimidate or overawe both 
Houses or either House of Parliament ; 

(c.) attempting by an insurrection of whatever kind to 
effect any general public object. 

But the expression " to levy war against the Queen" 
does not include any insurrection against any private 
person for the purpose of inflicting upon him any private 
wrong, even if such insurrection is conducted in a warlike 
manner.] 

Article 5Y. 

levying war by subjects of a state at peace with 
her majesty — subjects assisting. 

' Every subject or citizen of any foreign state or country 
at peace with Her Majesty, who 



the realm, that a person may, in Canada, be guilty of treason by levying war against tlie 
Queen. The words in italics were, no doubt, inserted in the information from abundant 
caution, and not because they were thought necessary to its validity. It is clear of course 
that Canada is not part of the realm ( Williams v. Nunn, 1 Taunt. 270 ; 1 Hale. c. xiv, 155j 
Opinion of the Attorney and Solicitor General ; Forsyth's Con. Law (1757) 2, 3); but it 
does not follow that no English statute that by its terms is limited to the realm will apply 
to a colony. That would obviously be the case with respect to statutes passed after Eng- 
land commenced to establish colonies or plantations, for the limitation would show the 
intention of Parliament that the statute should not apply to such colonies or plantations, 
But in respect of statutes pajssed before the era of colonies it is submitted that the true 
rule is that the statute applies if it is of a general character and applicable and necessary 
to the condition and circumstances of the people of the colony, although in the form in 
which it was enacted it was limited to the realm. Espeoially would this, I think, be the 
ease, where the statute was, as was the statute of Edward, declaratory of the common law. 
(Seo O'Brien V, R. 3 Cox, 360.) Then, too, it is to be observed that the Parliament of 
Canada has, in legislating upon the subject of treason, dealt with this statute as if it were 
in force in Canada. (R. S. C. c. 146, s. 9). 

' R. S. C. c. 146, 88. 6. 7, 8. The offender may be tried before a Superior Court of com- 
petent jurisdiction, or by a Militia General Court Martial. The latter court, but not the 
former, has a discretion as to the punishment to be awarded. An offender is within the 



THE CRIMINAL LA W. 8T 



(a.) is - 7 <3ontiiiues in arms against Her Majesty within 
Canada; or 

(6.) commits any act of hostility therein ; or 

(c.) enters Canada with intent to levy war against Her 
Majesty, or to commit any felony therein for which any 
person would, in Canada, be liable to suffer death ; and 

Every subject of Her Majesty within Canada who 

{a.) levies war against Her Majesty in company with 

any of the subjects or citizens of any foreign state or 

country at peace with Her Majesty; or 

[b.) enters Canada in company with any such subjects 

or citizens with intent to levy war against Her Majesty or 

to commit any such felony therein ; or 

(c.) with intent to aid and assist, joins himself to any 
person who has entered Canada with intent to levy war 
against Her Majesty, or to commit any such felony 
therein, 

Is guilty of felony and liable to suffer death. 

' Aeticle 58. 

HIGH TREASON BY ADHERING TO THE QUEEN'S ENEMIES. 

' [Every one commits high treason who, either in the 
realm or without it, actively assists a public enemy at 
war with the Queen. Rebels may be public enemies 
within the meaning of this Article. 



statute if he is present and acting with those who £ re armed, even though he is not armed ; 
R. V. Slavin, 17 U. C. C. P. 205. 3ee also R. v. McMahon, 26 U. C. Q. B. 195 : R. v. Lynch, 
26 U. C. Q. B. 208 ; R. v. School, 26 U. C. Q. B. 212 ; ^. v. Magrath, 26 U. C. Q. B. 386. 

' S. D. Art. 54. 

* [25 Edw. 3, St. 5, c. 2, as explained by Hale, 1 P. C HO-'/O, An officer betraying his 
post is a traitor at common law, though such offeu ie? are usu'Jly dealt with under martial 
law ; see 1 Hale, 168. I suppose a deserter in the '* jld ;ho joins the enemy commits high 
treason aa well as a military ofiFence. Draft Code, fc 75.] P^ S. C. o. 146, s. 2 ; 2 & 3 Anne, 
0. 23, s. 34 ; 44 & 45 Vict. c. 58, s. 4 (3) (4). 



58 A DIGEST OF 



'Article 59. 
adherence to a de facto kino not treason. 

^ [No person who attends upon the king and sovereign 
lord of this land for the time being, in his person, and 
does him true and faithful service of allegiance in the 
same, or is in other places by his commandment in his 
wars within this land or without, is for any such act 
guilty of treason (even if the king de facto should not be 
king dejure). 

'Article 60. 

KILLING the king's WIFE OR SON. 

^ Every one commits high treason who forms and dis- 
plays by any overt act an intention, 

(a.) to kill the wife of a king regnant ; or, 
[h.) to kill that son of a king or queen regnant who is 
for the time being heir-apparent to the king or queen. 

^Article 61. 

WHEN WORDS ARE treason. 

^ The speaking of words expressive of the intentions 
above mentioned is not an overt act within the meaning 
of Articles 54, 55 and 60. 
The w^riting of such words is snch an overt act. 

The speaking or w^riting of words accompanied by or 
explanatory of conduct connected with the execution of 
such intention is such an act. 

The speaking of words of advice, consultation, or com- 

i S. D. Art. 55. 

- [II Hen. 7, c. 1 : and see 6th Rep. C. L. C. p. 23]. 

as. D. Art. 56. 

* r25 Edw. 3, St.. 5, c. 2, as explained in 1 Hale, P. C. 124-129. Draft Code, s. 75]. 

5S. D.Art.57. 

« [Foster. 200-20]. 



THE CRIMINAL LA W. 59 



[mand. or otherwise connected with the execution of such 
intention, is such an act. 

' Article 62. 
violating the kino's wife, etc. 

- Every one commits high treason who violates (whether 
by her own consent or not) 

the wife of a king regnant ; or 

that darghter of the king or queen regnant who at the 
time is his or her eldest daughter, if she never has been 
married, and (perhaps) if she is a widow, and (probably) 
if her father or mother is alive; or 

the wife of that son of a king or queen regnant who for 
the time being is the heir-apparent of such king or queen. 

•'Article 63. 
punishment for treason. ; 

^ Every one who is convicted of high trot }\^ must be 
sentenced to be hanged by the neck until hv is dead. 

>S.D Art. 58. 

- [as Edw. 3, St. 5, c. 2, as explained by Hale, Draft tode, s. 75.] As a matter of 
historical interest only it maybe observed that every one commits high treason who slays 
the Chancellor of England, or the treasurer, or the king's justices of the one bench or the 
other, justices in eyre or justice of assize being in their places doing their offices; and 
that by 13 Eliz. c. 2, and other statutes of the same and succeeding reigns a number of 
acts, suoh as putting in ure a Popish Bull , were made high treason. See 1 Hawk, o, 2, s. 95 
et »eg : S. D. Art. 59 and note ; 2 Hist. Cr. Law, 261 et seq, 

" S. D. Art. 60, which has the following exception and note :— [But Her Majesty may (if 
theoffender is a man) direct by a warrant signed by one of her principal Secretaries of 
State, that instead thereof such offender's head shall.be severed from his body whilst 
alive. For common law judgment see Chitty, Crim. Law, 365-6. It was modified by 30 
Geo. 3, c. 48, as to women (who before that Act were liable to be burnt alive for treason) 
aa to mp" by 54 Geo. 3, o . 146, and 33 & 34 Vict, c . 23, s. 31 . The odd exception made in th e 
parenthes.d arises thus : the Act 30 Geo. 3, c. 48, applies only to women, and the 54 Geo. 3, 
c. 146, only to men. The proviso as to beheading occurs in the second only. The Act of 
1870 repeals parts of the Acts of 1790 and 1814. It would seem, however, that the power 
exists at common law. See Foster 269-70 The Act (31 & 32 Vict. c. 24) for executing sentence 
of death within gaols does not apply to cases of treason. Indeed 88- 2 and 16 together 
appear to exclude its operation in such oases. An execution for treason would, there- 
fore, it would seem, have to be public. Sir E. Coke's Scriptural reasons for the punish- 
ment of treason may be seen in 3 Inst . 211. Cf . Draft Code, s. 75]. See R. S. C. o. 181, s. 
10 which is general and not limited to cases of murder- 

^ R. S. C. c. 181, B. 5. 



m A DIGEST OF 



^ Article 64. 

all principals in treason. 

^ [Every person who in the case of felony would be au 
accessory before or after the fact is in the case of high 
treason a principal traitor, "* but a person who knowingly 
comforts or receives a traitor so far partakes of the nature 
of an accessory that he cannot be tried till the principal 
is convicted.] 

' Article 65. 

treasonable felonies. 

' Every one is guilty of felony, and liable to imprison- 
ment for life [who ^ forms any of the intentions hereinafter 
mentioned, and expresses such intention either by any 
overt act or by publishing any printing or w^riting,] or by 
open and advised speaking, [that is to say, 

(a.) an intention to depose the Queen, her heirs or suc- 
cessors, from the style, honour, and royal name of the 
Imperial Crown of the United Kingdom or of any other 
of Her Majesty's dominions or countries ; or 

(b.) an intention to levy war against Her Majesty, Her 
heirs or successors, within any part of the United 
Kingdom] or of Canada, [in order by force or constraint to 
compel her] or them [to change her] or their [measures or 
counsels, or in order to put any force or constraint upon, 
or in order to intimidate or overawe, both houses or either 
house of Parliament] of the United Kingdom or of 
Canada, [or 

(c.) an intention to move or stir any foreigner with 
force to invade the United Kingdom] or Canada, [or any 

» S. D. Art. 61. 

» [Poster, 343, and see 341-G. 

3 1 Hale, P. C, 238 ; Foster, 3io-G ; and see 2 Hist. Cr. Law]. 

♦ S. D. Art. 62. 

6 R. S. C. c. 146, 9. 3 ; 11 & 12 Vict. c. 12, ?. 3, Ji. v. Sl<ivin, 17 U. C. C. P. 205. 

* Everj one who compasses, imagines, invents, devises or intends, &c. 



THE CRIMINAL LAW. 61 



[other of Her Majesty's dominions or countries under the 
obeisance of Her Majesty, her heirs and successors. 

' A conspiracy to effect any of the said intentions is an 
overt act within the meaning of this Article.] 

^ No one shall be convicted of any felony mentioned in 
this article if such intention is expressed by open and ad- 
vised speaking only, unless 

{a.) information of such intention and of the words by 
which the same is expressed is given upon oath to a 
justice of the peace within six days after such words are 
spoken ; and 

ih.) a warrant for the apprehension of the offender is 
issued within ten days next after such information is 
given ; and 

(c.) the offender confesses in open court or the words 
so spoken are proved by two credible witnesses. 

Article &Q. 

conspiracy to intimidate a provincial legislature. 

' Every one is guilty of felony and liable to fourteen 
years' imprisonment who confederates, combines or con- 
spires with any person to do any act of violence, in order 
to intimidate, or to put any force or constraint upon any 
Legislative Council, Legislative Assembly or House of 
Assembly in any Province of Canada. 

^ ;' ^Article 6*7. 

assaults on the queen. 
^ [Every one who], in British Columbia, Manitoba or the 

1 [Mulcaliv y. R. I/. R. 3 H. L. 306.] 

' R. S. C. c 146, s. 5 ; 11 4& 12 Viot. o. 12, s. 4. The latter statute also contained a pro- 
vision that no prosecution could be sustained for an intention so expressed unless the 
warrant were issued within two years from the parsing of the statute, as to which see S. 
D. Art. 62. note (2). 

"R.S.C.C. 146,8.4. 

* S. D. Art. 64. 

"[5 46 Vict. 0. 51, ss. 1, 2 (redrawn). I have omitted a few manifestly superfluous 
words. Draft Code, s. 80.] 



A DIGEST OF 



North- West Territories, (does any of the acts hereinafter 
specified is guilty of a high misdemeanor, that is to say ; — 

(a.) Whoever wilfully and with intent to injure the 
person of the Queen or to alarm Her Majesty, or to break 
the public peace, or so as to endanger the public peace, 

(i.) points, aims, or presents at or near the person of the 
Queen any ' firearm, loaded or not, or any other kind of 
arm ; or 

(ii.) discharges at or near the person of the Queen any 
loaded arms ; or 

(iii.) discharges or causes to be discharged any ex- 
plosive material near the person of the Queen ; or 

(iv.) strikes, or strikes at, the person of the Queen in 
^ any manner whatever ; or 

(v.) throws anything at or upon the person of the 
Queen ; or 

(vi.) attempts to do any of the things specified in (ii.) 
(iii.), (iv.), or (v.) ;— ; , 

(6.) Whoever produces or has near the person of the 
Queen any ' arm or destructive or dangerous thing with 
intent to use the same to injure the person of the Queen 
or to alarm Her Majesty. 

^Article 68. 

contempts against the queen. 

* Every one commits a misdemeanor who is guilty of 
any contempt against the person of Her Majesty, or her 
royal dignity, by means of any contumelious, insulting, 
or disparaging words, acts or gestures. 

1 [" Any gun, pistol, or any other description of firearms, or of other arms whatsoever." 

* "With any oflfensive weapon or in any other."] 

8 S. D. Art. 65. 

•' [I have taken the words of the 7th Rep. C. C L. art. 2, c. ii, s. 2, founded on Hawkins, 
P. C. bk. i. ch. vi., which contains much obsolete and even more indefinite and undefin- 
able matter. See, too, 6th Rep. C. C. art. 44, and note. Hawkins treats contempts against 
the judges of the King's Courts under this head. Contempt of court seems to me hardly 
to be a branch of the criminal law] 



THE CRIMINAL LAW. 68 



^Article 69. 

solemnisin(j or assisting at marriage of a member 
of the royal family. 

- [Every person commits a misdemeanor who knowingly 
or wilfully presumes to solemnize, or to assist, or to be 
present at the celebration of any marriage of any de- 
scendant of the body of King George the Second, male or 
female (other than the issue of princesses married into 
foreign families), or at his or her making any matrimonial 
contract without the consent specified in 12 Greo. 3, c. 11. 

' Every person committing such a misdemeanor is put 
out of the Queen's protection. His lands, tenements, 
goods, and chattels are forfeited to the Queen, and he is 
to be imprisoned for life (perhaps, at the Queen's pleasure). 

^Article 70. 

. inciting TO MUTINY. 

•' Every one commits felony who maliciously and ad- 
visedly endeavours, 

(a.) to seduce any person serving in Her Majesty's 
forces by sea or land from his duty and allegiance to Her 
Majesty ; or 

(6.) to incite or stir up any such person to commit any 
act of mutiny, or to make or endeavour to make any 
mutinous assembly, or to co imit any traitorous or muti- 
nous practice whatever.] 

'S.D.Art.66. 

- [12 Geo 3, c. 11. s. 3. The punishment is praemunire, as explained by Coke, 1 Inst. 130 
a ; see 7th Rep. C. C. L. p. 37.] 

^ The Act 12 Geo. 3, c. 11, was hold to avoid a marriage contracted out of England 
contrary thereto, but how far the Srd section would apply to an o£fenco against the same 
committed in Canada is not, I think, clear. The Sustex Peerage Case, U C. & F. 85, 148. 

* S. D. Art. 63. 

6 37 Geo. 3, o. 70, g. 1, Draft Code, s. 82. R. v. Sherman, 17 U. C. C. P. 166. 



•t A DIGEST OF 



Article tl. 

ENTICING SOLDIERS OR SAILORS TO DESERT. 

' Every one is guilty of a misdemeanor who, not being 
an enlisted soldier in Her Majesty's service, or a seaman 
in Her Majesty's naval service, 

{a.) by words or with money or by any other means 
whatsoever, directly or indirectly persuades or procures, 
or goes about or endeavours to persuade, prevail on or 
procure, any such soldier or seaman to desert from or leave 
Her Majesty's military or naval service ; or 

(b.) conceals, receives or assists any deserter from Her 
Majesty's military or naval service, knowing Idu to be 
such deserter. 

The offender may be prosecuted by indictment or sum- 
marily before two justices of the peace. In the former 
case he is liable to fine and imprisonment - in the discretion 
of the court, and in the latter to a penalty not exceeding 
two hundred dollars, and not less than eighty dollars and 
costs, and in default of payment, to imprisonment for any 
term not exceeding six months. 

Article 12. 

resisting execution of warrant for arrest op 

deserters. 

^ Every one who resists the execution of any warrant 
authorizing the breaking open of any building to search 
for any deserter from Her Majesty's military or naval 
service is liable on summary conviction before two justices 
of the peace to a penalty of eighty dollars. 

1 R. S. C. 0, 169, 88. 1,4 ; B. v. Sherman, 17 U. 0. 0. P. 166 ; ^. v. Pattertmi, 27 U. C. Q. B. 
142. See 29 A 30 Vict. c. 109, ss. 25, 26 ; 44 A 45 Vict. o. 58, s. 153. 
3 Not however to exceed five years ; Art. 17. 
3 R. S. C. 0. 169, 8. 7. 



THE CRIMINAL LAW. 65 



Article *73. 

enticing militiamen or members of the north-west 
mounted police force to desert. 

' Every one is guilty of a misdemeanor and liable on 
summary conviction to six months' imprisonment with or 
without hard labor who, 

(a.) persuades any man who has been enlisted to serve 
in any corps of Militia, or who is a member of or has en- 
gaged to serve in the North-West Mounted Police Force, 
to desert, or attempts to procure or persuade any such 
man to desert ; or 

(6.) knowing that any such man is about to desert, aids 
or assists him in deserting ; or 

(c.) knowing any such man is a deserter, conceals such 
man or aids or assists him in concealing himself, or aids 
or assists in his rescue. 

' R. S. C. 0. 41, 8. 109 ; 52 Vict. (D.) o. 25, g, 4. As to the punishment of deserters from 
the North-West Mounted Police Force see R. S. C. o. 45, ?. 24, as amended by 52 Vict. (D.) 
c. 25, 8. 3. The active Militia are subject to the Queen's Regulations and Orders for the 
Army;R. S. C.c.41,8. 82. 



A DIGEST OF 



CHArTER VIII. 

CHALLENGES, PRIZE FIGJfTfNG, AFFRAYS, UNLAWFUL AS- 
SEMBLIES, ROUTS, RIOTS, UNLAWFUL DRILLING, FOR. 
CIBLE ENTRY AND DETAINER, UNLAWFUL POSSESSION 
AND USE OF EXPLOSIVE SUBSTANCES AND OFFENSIVE 
WEAPONS, PRESERVATION OF THE PEACE AT PUBLIC 
MEETINGS AND ELECTIONS AND NEAR PUBLIC WORKS, 
UNLAWFUL SALE OF SPIRITUOUS LIQUORS. 

' Articj.e *i 4. 

SENDING CHALLENGES AND PROVOTaNCJ TO FKJHT. 

[Every one commits a misdemeanor who 

(«.) - challouges any other person to fight a duel ; or, 

(b.) •' endeavors by words, or by writings, to provoke 

any other person to challenge the offender or to commit a 

breach of the peace]. 

Article 15. 

definition. 

* In Articles 76-79 the expression " prize fight " means 
an encounter or fight with fists or hands, between two 
persons who have met for such purpose by previous 
arrangement made by or for them. 

' Article 76. 

challenging to fight a prize fight — accepting— 

training therefor. 

^ Every one who sends or publishes, or causes to be 

1 S. D. Art. 67. 

2 [3 Inst. 158 ; 1 Russ. Or. 396 ; Draft Code, a. 97. 

* R. V. Phillips, 6 East, 463. It appears from the judgment in this case (pp. 470-5) that 
the offence defined in clause (b.) is only a special illustration of the general law as to io- 
oitement]. 

« R. S. C. 0. 153, 8. 1. 

5R.S.C. 0.153,8.2. 



THE CRIMINAL LA \V. '67 



sent or published, or otherwise made known, any challenge 
to fight a prize fight, or accepts any such challenge, or 
causes the same to be accepted, or goes into training pre- 
paratory to such fight, or acts as trainer or second to aiiv 
person who intends to engage in a prize fight, is guilty ol 
a misdemeanor, and liable, on summary conviction, to a 
penalty not exceeding one thousand dollars and not less 
than one hundred dollars, or to imprisonment for a term 
not exceeding six months, or to both. 

Article 77. 

enoaging as principal in a prize fight. 

' Every one who engages as a principal in a prize fight 
is guilty of a misdemeanor, and liable, on summary con- 
viction, to imprisonment lor a term not exceeding twelve 
mouths and not less than three months. 

Article t8. 

ATTENDIN(} OR PROMOTING A PRIZE FIGHT. 

^ Every one who is present at a prize fight as an aid, 
second, surgeon, umpire, backer, assistant or reporter, or 
who advises, encourages or promotes such fight, is guilty 
of a misdemeanor, and liable, on summary conviction, to 
a penalty not exceeding five hundred dollars and not less 
than fifty dollars, or to imprisonment for a term not ex- 
ceeding twelve months, or to both. 

Article 79. 
leaving canada to engage in a prize fight. 

^ Every one who, being an inhabitant or resident of 
Canada, leaves Canada with intent to engage in a prize 

> R. S. C. 0. 153, 8. 3. 
«R.S.C. 0.153, 8.4. 
"R. S. C.o.l63,i.5. 



68 A DIGEST OF 



fight without the limits thereof, is guilty of a misde- 
meanor, and liable, on summary conviction, to a penalty 
not exceeding four hundred dollars and not less than 
fifty dollars, or to imprisonment for a term not exceeding 
six months, or to both. 

Article 80. 
where the fight is not a prize fight — discharge or 

FINE. 

^ If, after hearing evidence of the circumstances con- 
nected with the origin of the fight or intended fight, the 
person before whom the complaint is made is satisfied 
that such fight or intended fight was bond fide the conse- 
quence or result of a quarrel or dispute between the 
principals engaged or intended to engage therein, and 
that the same was not an encounter or fight for a prize, 
or on the result of which the handing over or transfer of 
money or property depends, such person may, in his 
discretion, discharge the accused or impose upon him a 
penalty not exceeding fifty dollars. 

^ Article 81. 

AFFRAY. 



' [An afiray is the fighting of two or more persons in a 
public place to the terror of Her Majesty's subjects.] 

* Every one who commits an afiray is guilty of a mis- 
demeanor and liable, on summary conviction, to three 
months' imprisonment. 

— » R. S. C. 0. 163, B. 9. 

«S. D. Art.69. 

3 [3 Ingt. 158 ; 1 Russ. Cr. 366 ; Draft Code, a. 96.] 
« R. S. C. 0. 147, a. 14. 



THE CRIMINAL LAW. 



* Article 82. 
unlawful assembly. 

^ [An unlawful assembly is an assembly of three or 
more persons : — 

(a.) with intent to commit rime by open force ; or 

{b.) with intent to carry oat any common purpose, 
lawful or unlawful, in such a manner as to give firm and 
courageous persons in the neighborhood of such assembly 
reasonable grounds to apprehend a breach of the peace in 
consequence of it.] 

^ Every member of an unlawful assembly is guilty of 
a misdemeanor and liable to two years' imprisonment. 

Illustrations. 

[ (a.) * Sixteen persons met for the purpose of going out to commit the 
oflFence of being by night, unlawfully, upon land, armed in pursuit of 
game. This is an unlawful assembly. 

(6.) * A, B, and C meet for the purpose of concerting an indictable 
fraud. This, though a conspiracy, is not an unlawful assembly. 

(c.) " A, B, and C having met for a lawful purpose, quarrel and fight. 
This (though an affray) is not an unlawful assembly. 

{d.) ' A large number of persons hold a meeting to consider a petition 
to parliament lawful in itself, but they assemble in such numbers, with 
such a show of force and organization, and when assembled make use of 
such language, as to lead persons of ordinary firmness and courage in the 
neighborhood to apprehend a breach of the peace. This is an unlawful 
assembly.] 



' S. D. Art. 70. 

-fBrook's Abt. "Riot"; Viner's Abt. " Riot"; Lambarde, c. v. 172-184; Dalton, pp. 
310-14; 1 Hawk, P. C. 513-16, See also Report of Criminal Code Commission of 1879, p. 
20, and Draft Code, ss. 81-86.]. R. S. C. c. 147, s. 11, the words of which are " With intent 
" unlawfully to execute any common purpose with force and violence, or in a manner 
" calculated to create terror and alarm." See R. v. Oraham, 16 Cox C. C. 420; li. v. 
Bums, 16 Cox C. C. 355. 

='R.S.C.c.l47,s.ll. 

* [R. V. Brodribb, 6 C. <fe P. 571. The meeting in this case was in a private house. 

•' (SunmTTKD.) Compare 1 Hawk. P. C. 515. 

" 1 Hawk. P. C. 514. 

" Redford V. Birley, 3 Starkie, N, P, 107-8 ; R. v. Vincent. 9 C. & P. 91.] See also R. v. 
fium«,16CoxC.C.855. 



•70 A DIGEST OF 



' Article 83. 

ROUTS. . 

^ [A rout is an unlawful assembly which has made a 
motion towards the execution of the common purpose of 
the persons assembled.] 

^ Every one who is guilty of a rout is liable to three 
years' imprisonment. 

^ Article 84. 

:;;';:. ,','-■".■ v'/-. '" RIOTS. 

•■* [A riot is an unlawful assembly which has actually 
begun to execute the purpose for which it assembled, by 
a breach of the peace, and to the terror of the public ; or 

® A lawful assembly may become a riot if the persons 
assembled form and proceed to execute an unlawful pur- 
pose to the terror of the people, although they had not 
that purpose when they assembled.] 

^ Every one who is guilty of a riot is liable tD four 
years' imprisonment. ; 

lllwiration. 

[A, B, and C meet at A's hous? for the purpose of beating D, who lives 
a mile off. They then go together to D and there beat him. At A's 
houBe the meeting is an unlawful »"'ssembly, on the road it is a rout, and 
when the attack is made upon D it is a riot-] 



• S. D. Art. 71. 

-• [See note to Art. 82. Draft Code. ss. 85-87.1 
•' R. S. C. c. 147, s. 12. 

• S. D. Art. 72. 

6 See note to Art. 82 ; li v. Kelly, 6 U. C. C. P 372. A, one of a procession attacked by 
rioters, fires a pistol first in the air and then at the rioters. A is not guilty of riot. /?. ». 
Corcoran, 26 U. C. C. P. 134. 

• [Founded on the language of Holt, CJ., in R. v. Soleu, 11 Modem, llC] 
' R. 8. C. 147 8. 13. 



THE CRIMINAL LAW. 71 



* Article 85. 

preventing reading proclamation and continuing to 
riot after proclamation. 

- Every sheriif, deputy sheriff, mayor or other head 
officer, and justice of the peace, of any county, city or 
town, who has notice that there are within his jurisdiction 
persons to the number of twelve or more unlawfully, 
riotously and tumultuously assembled together to the dis- 
turbance of the public peace,' shall resort to the place 
where such unlawful, riotous and tumultuous assembly 
is, and among the rioters, or as near to them as he can 
safely come, with a loud voice command or cause to be 
commanded silence, and, after that, openly and with loud 
voice, make or cause to be made a proclamation in these 
words, or to the like effect : — 

" Our Sovereign Lady the Queen charges and com- 
" iriands all persons being assembled immediately to dis- 
" perse and peaceably depart to their habitations or to 
•' their lawful business, upon the pain of being guilty of 
" an offence, on conviction of which they may be sentenced 
" to imprisonment for life. 

* " God Save the Queen." 

All persons are guilty of felony and liable to imprison- 
ment for life ^ who, 

(«.) with force and arms wilfully oppose, hinder or 
hurt any person who begins or is about to make the said 
proclamation, whereby such proclamation is not made ; 
or 

(6.) continue together to the number of tw^elve, for one 
hour after such proclamation has been made, or if they 

' S. D. Art. 73. 

« R. S. C. c. 147, 88. 1,2 ; 1 Geo. 1. st. 2, c. 5, ss. 1, 2, 5,8 ; Draft Code, ss. 88, 89. 
■■• [Actual riot is not necessary, li. v. Jume», 5 C. & P. 153. 

* The omission of " God save the Queen " defeats the effect of the proclniuation ; J{. r. 
ChUdy 4 C. & P. 442]. 
" The time within which a prosecution may be commenced is limited to twelve months. 



12 A DIGEST OF 



know that its making was hindered as aforesaid, continue 
together and do not disperse themselves within one hour 
after such hindrance, 

' Article 86. 

riotous demolition of houses, etc. 

^ All persons are guilty of felony, and are liable to im- 
prisonment for life, who being riotuously and tumultu- 
ously assembled together to the disturbance of the public 
peace, unlawfully and with force demolish, or pull down, 
or destroy, any building, machinery, or mining plant, as 
defined in the note hereto,* or begin to do so. 

■* Article 8*7. 
riotous damage of houses, etc. 

"' All persons are guilty of a misdemeanor, and liable to 
se\en years' imprisonment, who being so assembled as 
aforesaid unlawfully and with force injure or damage any 
of the things aforesaid. 

> S. D. Art. 74. 

= K. S. C. c. 147, 8. 9; [24 & 25 Vict. c. 97, s. 11 (redrawn) ; Draft Code, s. 90]. li. v. 
Elston, 5 All. 2 was decided under the repealed statute R. S. N. B. o. 147, s. 1 which 
did not make the riotous assembly a necessary ingredient of the offence. 

-' " Building " means any church, chapel, meeting-house, or other place of divine 
worship, house, stable, coach-house, out-house, warehouse, office, shop, mill> malt* 
house, hop-oast, barn, granary, shed, hovel, fold, and any building or erection used in 
farming landi or in carrying on any trade or manufacture, or any branch thereof, and also 
any building other than those above mentioned, belonging to the Queen, or to any county, 
municipality, riding, city, town, village, parish or place, university, college, or hall of any 
university, or to any corporation, unincorporated body, society or persons associated for 
lawful purposes, or devoted or dedicated to public use or ornament, or erected or main- 
tained by public subscription or contribution. 

" Machinery " means any machinery, whether fixed or movable, prepared for, or em- 
ployed in, any manufacture, or in any branch thereof. 

" Mining plant " means any steam-engine, or other engine for sinking, working, 
ventilating, or draining any mine, or any staitbt building, or erection used in conducting 
the business of any mine, or any bridge, waggon-way, or track for conveying minerals 
from any mine. 

*S.DA.rt.76. 

1* R. S. C. c. 147, 8. 10 ; [24 & 25 Viot. c. 97, s. 12 (redrawn) ; Draft Code, s. 91J. 



THE CRIMINAL LAW. 73 



Article 88. 
inciting indians to riotous acts. 

' Every one is guilty of a misdemeanor and liable to 
two years' imprisonment who induces, incites or stirs up 
any three or more Indians, non-treaty Indians, or half- 
breeds apparently acting in concert, 

(a.) to make any request or demand of any agent or 
servant of the Government in a riotous, rontons, dis- 
orderly or threatening manner, or in a manner calculated 
to cause a breach of the peace ; or 

(6.) to do any act calculated to cause a breach of the 
peace. 

'' Article 89. 

"'forcible entry and detainer. 

[Every one commits the misdemeanor called a forcible 
entry who, in order to take possession thereof, enters upon 
any lands or tenements in a violent manner, whether such 
violence consists in actual force applied to any other pe^* 
son or in threats, or in breaking open any house, or in 
collecting together an unusual* number of persons for 
the purpose of making such entry. 

It is immaterial ^ whether the person making such an 
entry had or had not a right to enter, provided that a per- 
son who enters upon land or tenements of his own, but 
which are in the custody of his servant or bailiff, does 
not commit the offence of forcible entry. 

^ R. S. C. 0. 43, B. Ul. 

'S.D. Art.79. 

•' [1 Russ. Cr. 404-417; 1 Hawk. P. C. 495-512. There are many statutes in force on the 
subject, viz. 5 Ric. 2, st. 1, c. 7 (8 in common editions) ; 15 Rio. 2, o. 2; 8 Hen. 6, c. 9 ; 31 
Eliz. c. 11 ; 21 Ja. 1, c. 15. These statutes gire no definition of the offence, but provide a 
mode of procedure for giving possession to the party forcibly dispossessed. It is curious to 
compare these provisions with the Indian Code of Criminal Procedure, Act X, of 1872, o. 
40. See on forcible entry. Lows v. Telford, L. R. 1 App. Cas. 414. Draft Code, s. 95.] R. 
V. Martin, 10 L. C. R. 435 ; Bertram V. Bonham, 3 R. & C. 600. 

* if. V. ^mi<A, 43 U. C. Q. B. 369. 

' if. V. Cokelv, 13 U. C. Q. B. 521. 



74 A DIGEST OF 



Every one commits the misdemeanor called a forcible 
detainer who, having wrongfully entered upon any lands 
or tenements, detains such lands and tenements in a man- 
ner which would render an entry upon them for the pur- 
pose of taking possession forcible]. 

' Article 90 
unlawful drilling. 

^ All meetings and assemblies of persons for the pur- 
pose of training or drilling themselves, or of being trained 
or drilled to the use of arms, or for the purpose of 
practising military exercises, movements or evolutions, 
without lawful authority for so doing, are unlawful and 
prohibited. 

Every one is guilty of a misdemeanor and liable to two 
years' imprisonment who, 

(a.) is present at or attends any such meeting or 
assembly for the purpose of training any other person or 
persons to the use of arms or to the practice of military 
exercises, movements or evolutions ; or 

{b.) without lawful authority for so doing, trains or 
drills any other person oi persons to the use of arms, or 
to the practice of military exercises, movements or evolu- 
tions ; or 

(c.) aids or assists therein ; or 

(d.) attends or is present at any such meeting or 
assembly, for the purpose of being trained or drilled to 
the use of arms or to the practice of military exercises, 
movements or evolutions ; or 

(e.) at any such meeting is so trained or drilled. 

'S.D. Art.82. 

2 R. S C. 0. 147, ss. 4, 5,0 ; 6) Geo. 3, anJ 1 Geo. 4, c. 1, s. 1. The time within which a 
proaeoution inay be commenced is limited to six months ; (s. 8). 



THE CRIMINAL LA W. 76 



' Aeticle 91. 
definitions. 

'' In Articles 92, 93 and 94, 

(a.) the expression " Attorney General " means the At- 
torney G-encral of the Province of Canada in which any 
proceedings are taken under this Act, and, with respect 
to the North- West Territories and the District of Keewatin, 
the Attorney General of Canada ; 

{h.) the expression " explosive substance " includes any 
materials for making any explosive substance ; also any 
apparatus, machine, implement, or materials used, or in- 
tended to be used, or adapted for causing, or aiding in 
causing, any explosion in or with any explosive sub- 
stance ; and also any part of any such apparatus, machine 
or implement. 

Article 92. 
causing dangerous explosions. 

^ Every one is guilty of felony and liable to imprison- 
ment for life who unlawfully and maliciously causes by 
any explosive substance an explosion of a nature likely to 
endanger life or to cause serious injury to property, 
whether any injury to person or property is actually 
caused or not. 

' S. D. Art. 37G A. 

3 R. S. C. c. 150, s. 2 ; 46 Vict. c. 3, 8. 9. 

^ R. S. C. e. 150, 8. 3 ; 40 Vict. c. 3, e. 2. In Stephen's DiROst the provisions founded 
on this Act are to he found in the chapter on Malicious Injuries to Property, but as 
thoy relate as well to offences against the person, and in either case the offence is not 
ordinarily directed against an individual or his property, but is committed a«ainst the 
public and with an intent to alarm it, I thought the Act might, with propriety, find a 
place with offences against public order. As to offences committed by means of ex- 
plosive substances involving or with intent to murder or to do bodily injuries see Arts. 
289 (e) 299, and as to similar offences involving injury to property or committed with 
intent to do such injury, see Arts. 568 (o), 570 (a). 



•76 A DIGEST OF 



Article 93. 



DOING ANYTHING, OR POSSESSING EXPLOSIVE SUBSTANCES, 
WITH INTENT TO CAUSE DANGEROUS EXPLOSIONS. 

' Every one is guilty of felony, and liable to fourteen 
years' imprisonment, who unlawfully and maliciously — 

(a.) does any act with intent to cause by an explosive 
substance, or conspires to cause by an explosive sub- 
stance, an explosion of a nature likely to endanger life, 
or to cause serious injury to property ; or 

(b.) makes or has in his possession or under his con- 
trol any explosive substance with intent by means 
thereof to endanger life or to cause serious injury to 
property or to enable any other person by means thereof 
to endanger life or to cause serious injury to property — 

whether any explosion takes place or not, and whether 
any injury to person or property is actually caused or not. 

Article 94. 

unlawfully making or possessing explosive 

substances. 

- Every one is guilty of felony and liable to seven 
years' imprisonment, who makes or knowingly has in 
his possession or under his control any explosive sub- 
stance under such circumstances as to give rise to a 
reasonable suspicion that he is not making it or has it 
not in his possession or under his control for a lawful 
object, unless he can show that he made it or had it in 
his possession or under his control for a lawful object. 

In any proceeding against any person for any such 
offence, such person and his wife, or her husband, as the 
case may be, may, if such person thinks fit, be called, 
sworn, examined, and cross-examined as an ordinary 
witness in the case. 

> R. S. C. c. 150, s. 4 i 46 Vict. c. 3 s. 3. 

- R. S. 0. c. 150, 8. 5 ; 46 Vict. c. 3, ss. 4, 7 (1). 



THE CRIMINAL LAW. 11 



If any person is charged before a justice of the peace 
with any such oifence, no further proceeding shall be 
taken against such person without the consent of the 
Attomey-G-eneral, except such as the justice of the peace 
thinks necessary, by remand or otherwise, to secure the 
safe custody of such person. 



Article 95. 

carrying pistol without reasonable cause. 

' Every one who has upon his person a pistol or air 
gun without reasonable cause to fear an assault or other 
injury to his person or his family or property, may, upon 
complaint made before any justice of the peace, be 
required to find sureties for keeping the peace for a term 
not exceeding six months ; and in default of finding such 
sureties, may be imprisoned for any term not exceeding 
thirty days. 

Article 96. 
having a pistol on person when arrested. 

^ Every one who when arrested, either on a warrant 
issued against him for an offence or whilst committing 
an offence, has upon his person a pistol or air-gun, shall, 
on summary conviction before two justices of the 
peace, be liable to a penalty not exceeding fifty dollars 
and not less than twenty dollars, or to imprisonment for 
any term not exceeding three months. 

' R. 8. C. 0. 148, R. 1. The time within which a proseoution may be commenced for any 
offence defined in Articles 95-100, and 102, is limited to one month ; (s. 9). 

^ R. S. 0. 0. 148, s. 2. As to the punishment of any person found loitering near any 
ship, and being at the time armed) and not giving a satisfactory account of himself, see 
R. B.C. 0.74. 8. 87, Art. 251. 



IS A DIGEST OF 



Article 97. 

having a pistol on the pek80n with intent to 
injure any person. 

* Every one who has upon his person a pistol or air- 
g:un, with intent therewith unlawfully and maliciously 
to do injury to any other person, shall, on summary con- 
viction before two justices of the peace, be liable to a 
penalty not exceeding two hundred dollars and not less 
than fifty dollars, or to imprisonment for any term not 
exceeding six months ; and the fact of the pistol or air- 
gun being on the person shall be primd fane evidence of 
such intent. 

Article 98 
pointing any firearm at any person. 

- Every one who, without lawful excuse, points at 
another person any firearm or air-gun, whether loaded or 
unloaded, shall, on summary conviction before two jus- 
tices of the peace, be liable to a penalty not exceeding 
fifty dollars and not less than twenty dollars, or to 
imprisonment for any term not exceeding thirty days. 

Article 99. 

carrying offensive weapons about the person. 

^ Every one who carries about his person any bowie- 
knife, dagger or dirk, or any weapons called or known as 
iron-knuckles, skull-crackers or slung shot, or other offen- 
sive weapons of a like character, or secretly carries about 
his person any instrument loaded at the end, or sells or 
exposes for sale, publicly or privately, any such weapon, 

> R. S. 0. 0. 148, s. 3. 
- R. S. C. 0. 148, 8. 4. 
« R. S. C. c. 148, 8. 5. 



THE CRIMINAL LAW. T9 



shall, on summary conviction beloro two justices of the 
peace, be liable to a penalty not exceeding fifty dollars 
and not less than ten dollars, and in default of payment 
thereof to imprisonment for any term not exceeding thirty 
days. 

Akticle 100. 

CARRYINO SHEATH-KNIVErt IN SEAPORTS. 

' Every one, not being a seaman or rigger occupied or 
engaged in his lawful trade or calling, who is found, in 
any of the seaport towns or cities of Canada, carrying 
about his person any sheath-knife, shall, on summary 
conviction before two justices of the peace, be liable to a 
penalty not exceeding forty dollars and not less than ten 
dollars, and in default of payment thereof to imprison- 
ment for any term not exceeding thirty days. 

^Article 101. 

GOlNa ARMED SO AS TO CAUSE FEAR. 

^ [Every one commits a misdemeanor who goes armed 
in public, without lawful occasion, in such a manner as 
to alarm the public] 

Article 102. 

TWO OR more persons OPENLY CARRYING DANGEROUS 
WEAPONS SO AS TO CAUSE ALARM. 

* If two or more persons openly carry dangerous or un- 
usual weapons in any public place, in such a manner and 
under such circumstances as are calculated to create terror 

1 R. S. C. 0. 148, s. 6. 

2 S. D. Art. 68. 

" [2 Edw. 3, c. 3. paraphrased with reference to the explanations given in 1 Hawk. P. C. 
488-9.] 
*R. 8. Co. 148,8.8. 



80 A DIGEST OF 



and alarm, each of such persons is liable, on summary 
conviction before two justices of the peace, to a penalty 
not exceeding forty dollars and not less than ten dollars, 
and in default of payment to imprisonment for any term 
not exceeding thirty days. 

Article 103. 
exception as to soldiers, etc. 

' It is not an offence for any soldier, sailor or volunteer 
in Her Majesty's service, constable or other policeman, to 
carry loaded pistols in the discharge of his duty. 

Article 104. 

HAVING possession OF ARMS FOR PURPOSES DANGEROUS 
TO THE public PEACE. 

^ Every one is guilty of a misdemeanor and liable to 
five years' imprisonment '^ who has in his custody or pos- 
session,* or carries,'' any arms " for any ipurpose dangerous 
to the public peace. 

Article 105. 

refusing to deliver offensive WEAPON TO A JUSTICE. 

^ Every one attending any public nieeting or being on 
his way to attend the same who, upon demand made by 
any justice of the peace within whose jurisdiction such 

1 R. S. C. 0. 148, s. 10. 

' R. S. C. 0. 149. The prosecution must be commenced within six months after the 
offence is committed ; (s. 6). 

3 Art. 17. 

♦R.S.C.c.149,8.2. 

'> Ibid. s. 4. 

* The exprossion " arms " includes any pilce, pike-head, spear, dirk, dagger, sword, 
pistol, gun, rifle or other weapon, gunpowder, lead, cartridges, bullets and other ammn- 
nition or munitions of war ; (R. S. C* o. 149, s. 1.) 

7R.S.C.o.l52,8.1. 



THE CRIMINAL LAW. 81 



public meeting is appointed to be held, declines or re- 
fuscH to deliver up, peaceably and quietly, to such justice 
of the peace, any ' oftensive weapon with which he is 
armed or which he has in his possession, is guilty of a 
misdemeanor. 

The justice of the peace may record the refusal and ad- 
judge the offender to pay a pinialty not exceeding eight 
dollars, or the offender may be proceeded against by in- 
dictment as in other cases of misdemeanors. 

Article 106. 
coming armed within two miles of public meeting. 

^ Every one except the shcritF, deputy sheriff and 
justices of the peace for the district or county, or the 
mayor and justices of the peace for the city or town 
respectively, in which any public meeting is held, and 
the constables and special constables employed by them, 
or any of them, for the preservation of the public peace at 
such meeting, who, during any part of the day upon 
which such meeting is appointed to be held, comes 
within two miles of the place appointed for such meet- 
ing, armed with any offensive weapon, is guilty of a mis- 
demeanor, and liable to a penalty not exceeding one 
hundred dollars, or to imprisonment for a term not ex- 
ceeding three months, or to both. 

Article 107. 

LYING IN wait FOR PERSONS RETURNING FROM PUBLIC 

MEETING. 

^ Every one is guilty of a misdemeanor and liable to a 
penalty not exceeding two hundred dollars, or to im- 

' " Offensive weapon " in Articles 105, 108, 108 and 109 moans fire-arms, swords, staves, 
bludgeons and the like. 
* R. S. 0. 0. 152, 8. 5. 3 R. S. C. 0. 152, s. 6. 

O 



82 A DIGEST OF 



prisonment for a term not exceeding six months, or to 
both, who lies in wait for any person returning, or ex- 
pected to return, from any such public meeting, with in- 
tent to commit an assault upon such person, or with in- 
tent, by abusive language, opprobrious epithets or other 
offensive demeanor, directed to, at or against such person, 
to provoke suoh person, or those who accompany him, to 
a breach of the peace. 

Aeticle 108. . 

refusing to deliver offensive weapons to return- 
ing officer. . ■ 

^ Every one who on nomination day, or on any day 
whereon any poll is holden for the election of a member 
to serve in the House of Commons of Canada, or under 
The Canada Temperance Act, on demand made by any re- 
turning officer or deputy returning officer, within half a 
mile of the place of nomination or polling, refuses to de- 
liver to such officer any offensive weapon in his posses- 
sion, is liable to a penalty of one hundred dollars ^ and in 
default of payment to three months' imprisonment. 

Article 109. : > ; 

coming armed into polling district, or within one 
mile of polling place. 

^ Every one is guilty of a misdemeanor and liable to a 
penalty of one hundred dollars or three months' imprison- 
ment, or both, 

(a.) who, being within a polling district during any 
part of a day on which a poll for any such election as 
mentioned in the next preceding Article is being holden, 

iR.S.C. c. 8, 8.76; c. 106,8. 6J. 

' As to the manner of enforoing the penalty see p. 128 note 2. As to the limitation 
of time for instituting proceedings see R. S. C. c. 8, s. 117 ; o. 106, g. 00. 
3 R. S. C. 0. 8, ss. 78, 82 ; o. 106, ss. 70, 73. 



THE CRIMINAL LAW. 83 

arms himself with any offensive weapon and thus armed 
approaches within one mile of the polling place ; or 

(6.) who, not being one of the persons described in the 
note hereto/ during any part of the day upon which any 
such poll is to remain open, comes into the polling dis- 
trict armed with any offensive weapon. 

Article 110. 

smugglers carrying offensive weapons. 

^ Every one is guilty of felony and liable to imprison- 
ment for life^ who is found with any goods liable to 
seizure or forfeiture under any law relating to the 
customs, trade or navigation and carrying offensive arms 
"r weapons or in any way disguised. 

Article 111. 
sale of arms in the north-west territories. 

* Every one is guilty of a misdemeanor and liable, on 
summary conviction before two justices of the peace,' to 
a penalty of two bundled dollars or to six months' im- 
prisonment, or to both, who during any time when, and 
within any place in the North-West Territories where, 
section one hundred and one of The North- West Territories 
Act is in force, 

[a.) without the permission- in writing (the proof of 

^ The statute'excepts the following persons ; the returning officer, deputy returning 
officer, any constable or special constable appointed by the returning officer or his 
deputy for the preservation of peace at the election, and any person who has had a stated 
residence in the polling district for at least ^'X months next before the day of elec- 
tion, and, in the case of the election of a membei to serve in the House of Commons, the 
poll clerk. 

2 R. S. C. c. 32, 8. 213. 

3 Art. 17. 

* R. S. C c. 50, 1. 101. As to the power of the Superintandent-Qeneralof Indian Affairs 
to prohibit a^y sale, gift or other disposal to any Indian in Manitoba or the Territories of 
fixed ammunition or ball cartridge, and the punishment of offenders, see R.S. C.c. 43, 
s. 113. 

"" Or a Judge ot the Supreme Court." 

o2 



84 A DIGEST OF 



which shall be on him) of the Lieutenant-Grovernor, or of 
a commissioner appointed by him to give such permission, 
has in his possession or sells, exchanges, trades, barters or 
gives to or with any person, any ^ improved arm or am- 
munition ; or 

{b.) having such permission, sells, exchanges, trades, 
barters or gives any such arm or ammunition to any per- 
son not lawfully authorized to possess the same. 

Article 112. 
possessing weapons near public works. 

^ Every one employed upon or about any public work, 
within any place in which the ^ Act respecting the preserva- 
tion of peace in the vicinity of public works is then in force, 
who, upon or after the day named in the proclamation 
by which such Act is brought into force, keeps or has in 
his possession or under his care or control, within any 
such place, any * weapon, is liable on summary convic- 
tion, to a penalty noi exceeding four dollars and not less 
than two dollars for every such weapon found in his 
possession. 

Every one who, for the purpose of defeating the said 
Act, receives or conceals, or aids in receiving or conceal- 
ing, or procures to be received or concealed within any 
place in which the said Act is at the time in force, any 
weapon belonging to or in custody of any person em- 
ployed on or about any public work, is liable, on summary 

1 " Improved arm " in this connection moans any arm except a smooth bore shotgun ; 
and " ammunition " means fixed ammunition or ball cartridge. 

2R. S.C.c. 151, ss. 1,5,6, 21. 

" The expression " Act " means such sections thereof as are in force by virtue of the 
proclamation, and the provisions of the article would not be in force unless sections five 
and six were included in such proclamation. 

* The expression " weapon " includes any gun or other firearm, or air-gun or any part 
thereof, or any sword, sword-blade, bayonet, pike, pike-head, spear, spear-head, dirk, 
dagger, or other instrument intended for cutting or stabbing, or any steel or metal 
knuckles, or other deadly or dangerous weapon, and any instrument or thing intended to 
be used as a weapon, and all ammunition which may be used with or for any weapon. 



THE CRIMINAL LAW, 85 



conviction, to a penalty not exceeding one hundred dol- 
lars and not less than forty dollars. ' 

Article 113. - :-.-::'\:.-. '..-;:■;■ ^^^^ ^"^■'' 
sale, etc., of liquors near public works. 

^ Upon and after the day named in any proclamation 
putting in force in any place an Act respecting the 
preservation of peace in the vicinity of public works and 
during such period as such proclamation remains in 
force, no person shall, at any place within the limits 
specified in such proclamation, sell, barter, or directly or 
indirectly, for any matter, thing, profit or reward, ex- 
change, supply or dispose of any intoxicating liquor ; nor 
expose, keep or have in possession any ^intoxicating 
liquor intended to be dealt with in any such way : 

The provisions of this article do not extend to any per- 
son selling "intoxicating liquor by wholesale and not re- 
tailing the same, if such person is a licensed distiller or 
brewer. 

Every one who, by himself, his clerk, servant, agent or 
other person, violates any of the foregoing provisions, is 
liable, on a summary conviction for a first offence, to a 
penalty of forty dollars and costs, and, in default of pay- 
ment, to imprisonment for a term not exceeding three 
months, — and on every subsequent conviction, to the 
said penalty and the said imprisonment in default of 
payment, and also to further imprisonment for a term not 
exceeding six months. 

Every clerk, servant, agent or other person who, being 
in the employment of, or on the premises of, another per- 
son, violates or assists in violating any of such provi- 

' R. S. C. c. 151, as. 1, 13, 14, 15, 21. As to tho meaning of the word " Act," see note (3) 
to Art. 112. 

-The expression " intoxicating liquor" means and includes any alcoholic, spirituous, 
vinouS) fermented or other intoxicating liquor, or any mixed liquor, a part of trhioh is 
spirituous or vinous, fermented or otherwise intoxicating. 



86 A DIGEST OF 



sions, for the person in whose employment or on whose 
premises he is, is equally guilty with the principal 
offender, and liable to the same punishment. 

Article 114. 

intoxicating liquors on board her majesty's ships. 

^ Every one who, without the previous consent of the 
officer commanding the ship or vessel, — 

(a.) conveys any spirituous or fermented liquor on 
board any of Her Majesty's ships or vessels ; 

(b.) approaches or hovers about any of Her Majesty's 
ships or vessels for the purpose of conveying any such 
liquor on board the same ; 

(c.) gives or sells to any man in Her Majesty's service, 
on board any such ship or vessel, any spirituous or fer- 
mented liquor ; 

Is guilty of a misdemeanor and liable, on summary 
conviction before two justices of the peace, to a fine not 
exceeding fifty dollars for each oftence, and in default of 
payment to imprisonment for a term not exceeding one 
month. 

' 50 <fe 51 Vict. (D.) 0. 46, s. 1 ; 16 <fe 17 Vict. o. 69. s. 12. The object aimed at in the Act 
from which this Article is taken is the maintenance of discipline on board Her Majesty's 
ships, and in R. S. C. c. 151, the preservation of the peace in the vicinity of public works. 
Of a similar character are the prohibitions of the sale of spirituous liquors within the 
polling district on the day on which any poll is holden for any election of a member of the 
House of Commons (R. S. C. c. 8,8. 83) or under The Canada Temperance Act (R. B. C, 
c. 106, s. 74). By the 293rd section of The Raibrav Act (51 Vict. (D.) o. 29). the sale or gift of 
any intoxicating liquor to any servant of any railway company while on duty is made an 
offence punishable on summary conviction by a fine of fifty do'lars, or one month's impri- 
sonment with or without hard labor, or by both fine and imprisonment. 

There are various other prohibitions of the sale of liquors, the primary object of which 
is rather to lessen drunkenness than to prevent such breaches of the peace, or danger to 
life or property, as at times result therefrom. See R. S. C. o. 43, ss. 94-105 ; 50 & 51 Vict. 
(D.) c. 33, s. 10; 51 Vict. (D.) c. 22, s. 4, and R. S. B. C. c. 85, ss. 10, 11 as to the sale of 
intoxicating liquors to Indians; R. S. C. o. 50, ss. 92-100, and 51 Vict. (D.) c. 19, s. 18, as to 
such sales in the Territories ; and R. S. C, c. 53. ss. 35-43, in Keewatin. See also Tlie 
Temperance Act, 1864 (27 &. 28 .Vict. (P. C). c. 18, and The Canada Temperance Act (R.S. 0. 
C. 106, 8. 99 et fieq. 



THE CRIMINAL LAW. 8t 



CHAPTER IX. 

OFFENCES AGAINST INTERN/ \ TRANQUILLITY BY 

UNLAWFUL ENGAGEMENTS AND COMBINATIONS 

AND CONFEDERACIES. 

^Article 115. 
unlawful oaths. 

^ Every one is guilty of felony who in Quebec or (pro- 
bably) in British Columbia, Manitoba or the North-"West 
Territories, 

(a.) Administers or cause to be administered, or is aid- 
ing or present at and consenting to the administering of, 
any oath, engagement, or obligation in the nature of an 
oath, purporting or intending to bind the person taking 
the same, 

(i.) to commit treason or murder or any felony pun- 
ishable with death ; 

(ii.) to engage in any seditious, rebellious or treasonable 
purpose ; 

(iii.) to disturb the public peace ; 

(iv.) to be of any association, society, or confederacy 
formed for any such purpose ; 

(v.) to obey the orders or commands of any committee 
or body of men not lawfully constituted, or of any leader 
or commander, or other person not having authority by 
law for that purpose ; " 

(vi.) not to inform or give evidence against any asso- 
ciate, confederate, or other person ; 

(vii.) not to reveal or discover any illegal act done or to 

' S. D. Arts. 83, 81. 

^ C. S. L. C. c. 10, ss. 1, 3, 5 ; [52 Geo. 3, c. 1:4, ss. 1, 6. See 2 Hist. Cr. Law, 294-7, and 
Draft Code, s. OP.] 



88 A DIGEST OF 



be done ; or any illegal oath or engagement administered 
or tendered to, or taken by any person, or the import of 
any such oath or engagement; or 

{b.) Takes any such oath or engagement, not being 
compelled thereto. 

The offender is liable to imprisonment for life ^ if the 
offence is committed in British Columbia, Manitoba or 
the North-West Territories, and to twenty-one years' 
imprisonment if in Quebec he commits any offence men- 
tioned in clause (a.), and to seven years' imprisonment if 
he commits the offence mentioned in clause {b.) 

' ' f|.. ''-. ."-" 

^ Article 116. 

compulsion, how far a defence. 
^ No person who takes any oath or engagement referred 
to in Article 115, under compulsion, shall be justified or 
excused thereby, unless within the time mentioned in 
the note hereto^ if not prevented by actual force or sick- 
ness, and then within the time mentioned in the note 
hereto,^ after the cessation of the hindrance produced by 
such force or sickness, he declares the same, and the 
whole of what he knows touching the same, and the per- 
sons by whom, and in whose presence, and when or 
where such oath or engagement was administered or 
taken, by information on oath before one of Her Majesty's 
justices of the peace. 

^Article lit. 

UNLAWFUL societies. 

^ In Quebec every society or association is an unlawful 
combination or confederacy, 

1 Art. 17. 

2 S. D. Art. 85. 

3 C. S. L. C. c. 10, B. 2; [52 Geo. 3, c. 104, s. 2 ; 37 Geo. 3, c. 123, s. 2 ; Draft Code, i. 23.] 

* In Quebec, eight days in all cases. In British Columbia, Manitoba, and the North- 
West Territories, fourteen days in the caae referred to in (a.) (i.), and four days in the 
other oases (a.) (ii.) (iii.), (iv.), (v.), (vi.), (vii.) 

6 S. D. Art. 86. 

« C. S. L. C. c. 10, s. 6 ; 39 Geo. 3, c. 79, s. 2 ; 67 Geo. 3, o. 19, ss. 24-25. 



THE CRIMINAL LAW. 89 

(a.) If its members, according to the rules thereof, or to 
any provision or agreement for that purpose, 

(i.) are required to keep secret the acts or proceedings 
thereof, or 

(ii.) are admitted to take any unlawful oath or engage- 
ment within the meaning of Article 115 ; or any oath or 
engagement not required or authorized by law ; or 

{b.) If its members or any of them take or in any man- 
ner bind themselves by any such oath or engagement, or 
in consequence of being members thereof; or 

(c.) If its members or any of them take, subscribe or 
assent to any engagement of secrecy, test or declaration 
not required by law ; or 

[{d.) If the names of the members, or any of them, are 
kept secret from the society at large ; or 

(e.) ^ If there is any committee or select body so chosen 
or appointed that the members constituting the same are 
not known by the society at large to be members of such 
committee or select body ; or 

(/.) If there is any president, treasurer, secretary, dele- 
gate, or other officer so chosen or appointed that his elec- 
tion or appointment to such office is not known to the 
society at large ; or 

{g.) If the names of nil the members, and of all com- 
mittees or select bodies of members, and of all presidents, 
treasurers, secretaries, delegates, and other officers, are not 
entered in a book or books to be kept for that purpose, 
and to be open to the inspection of all the members of 
such society ; or 

{h.) If the society is composed of different divisions or 
branches, or of different parts acting in any manner sepa- 
rately or distinct from each other, or of which any part 
has any separate or distinct president, secretary, trea- 
surer, delegate, or other officer elected or appointed by or 
for such part or to act as an officer for such part. 

^ The word " secret," instead of '* select," occurs in one place in C, S. L. C. c. 10, s. 6, 



90 . A DIGEST OF 



' Article 118. 
freemasons excepted. 

^ The provisions of Article lit do not extend to the 
meetings of any lodge of freemasons held under such 
denomination and in conformity to the rules prevailing 
among lodges, if the lodge is constituted by or under the 
authority of a warrant granted by or derived from any 
grandmaster or grand lodge in the United Kingdom of 
Grreat Britain and Ireland or grandmaster or grand lodge 
of Canada. v 



3 



Article 119. 



PUNISHMENT OF MEMBERS. 

* Every member of any such society, and every person 
who acts as a member thereof, or directly or indirectly 
maintains correspondence or intercourse with any such 
society, or with any division, branch, committee, or other 
select body, president, treasurer, secretary, delegate, or 
other officer or member thereof as such, or by contribu- 
tion of money or otherwise aids, abets or supports any 
such society, or any member or officer thereof as such, is 
guilty of an unlawful combination or confederacy and 
liable to seven years' imprisonment. 

° Article 120. 

permitting meetings of unlawful societies. 

" Every one who in Quebec knowingly permits any 
meeting of any society or association declared in Article 

» S. D. Art. 87. 

2 C. S. L. C. c. 10, s. 9 ; 29 Vict. (P. C.) c. 46 ; 39 Geo. 3, c. 79, ss. 1-6. 

••' S. D. Art. 88. 

■'■ C. S. L. C. c. 10. S3. 6, 7; 39 Goo. 3, c. 79. ss. 8, 9 ; 57 Geo. 3, c. 19, s. 25. 

6 S. D. Art. 89. 

« C. S. L. C. c. 10, s. 8. 



THE CRIMINAL LAW. 91 

117 to be an unlawful combination or confederacy, or any 
division, branch, or committee thereof, to be held in his 
house, apartment, barn, outhouse, or other building, is 
liable on conviction for a first offence to a fine of two 
hundred dollars. 

Every one who in Quebec commits any such offence 
after a conviction for a first offence is deemed guilty of 
an unlawful combination or confederacy, and is liable to 
seven years' imprisonment. 

^ Article 121. 

seditious words and libels. 

[Every one commits a misdemeanor who with a 
seditious intention speaks any words or publishes any- 
thing capable of being a libel. If the matter published 
consists of words spoken, the offence is called the speak- 
ing of seditious words. If the matter so published is con- 
tained in anything capable of being a libel, the offence is 
called the publication of a seditious libel. 

The word " publish " in this Article is used in the same 
sense as in Article 343, and the word "libel"' in the 
second of the two senses specified in Article 340. 

^ Article 122. 

seditious conspiracy. 

* Every one commits a misdemeanor who agrees with 
any other person or persons to do any act for the further- 
ance of any seditious intention common to both or all of 
them. Such an offence is called a seditious conspiracy. 

• S. D. Art. 91. 

l-» [1 Hawk. P. C. 66, 486 ; 4 Steph. Com. 238 ; and foo 2 Hist. Cr. Law, ch. xxiv. pp. 298.396. 
Draft Code, s. 10:Jj. 
3 S. D. Art. 92. 

♦ [See Wright on the Law of Conspiracy, 28-31. Draft Code, a. 102.] 



92 A DIGEST OF 



^ Article 123. 

seditious intention defined. 

[A seditious intention is an intention to bring into 
hatred or contempt, or to excite disaffection against, the 
person of Her Majesty, her heirs or successors, or the 
government and constitution of the United Kingdom] or of 
Canada, [as by law established, or either House of Parlia- 
ment, or the administration of justice, or to excite Her 
Majesty's subjects to attempt, otherwise than by lawful 
means, the alteration of any matter in the State by law 
established,^ or to incite any person to commit any crime, 
in disturbance of the peace, or to raise discontent or dis- 
aflfection amongst Her Majesty's subjects, or to promote 
feelings of ill-will and hostility between different classes 
of such subjects. 

* An intention to shew that Her Majesty has been mis- 
led or mistaken in her measures, or to point out errors or 
defects in the government or constitution as by law 
established, with a view to their reformation, or to excite 
Her Majesty's subjects to attempt, by lawful means, t^ie 
alteration of any matter in the State by law establishf.d, 
or to point out, in order to their removal, matters which 
are producing, or have a tendency to produce, feelings of 
ill-will between classes of Her Majesty's subjects, is not a 
seditious intention. 



1 S. D. Art. 93. 

»[60aeo. 3& 1 Geo. 4,c. 8; and O'Connell v. ^., 11 CI. & F. 155, 234. Draft Code, 
8. 102.] See also /;. v. Bunis, 16 Cox C. C. 358. 

3 IThese words were not in the earlier editions of this work. I do not think they enlarge 
the sense, but they make it more explicit. They were intended to meet such cases as those 
of Most and Mertens, tried in 1881 and 1882 for publishing articles in the Freiheit ap- 
plauding the assassination of the Emperor of Russia and that of Lord Frederick Caven- 
dish and Mr. Burke at Dublin. See, too, the case of R. v. Collins, 9 C. & P. 456, and 
judgment of Littledale, J., 460. 

* B. V. Lambert and Perry, 2 Camp. 398 ; 11. v. Vincent, 9 C. •& P. 91.] 



THE CMIMmAL LAW. 93 

* Article 124. 

presumption as to intention. 

^ [In determining whether the intention with which any 
words were spoken, any document was published, or any 
agreement was made, was or was not seditious, every per- 
son must be deemed to intend the consequences which 
would naturally follow from his conduct at the time 
and under the circumstances in which he so conducted 
himself. 

•' Article 125. 

spreading false news. 

* Every one commits a misdemeanor who cites or pub- 
lishes any false news or tales whereby discord or occasion 
of discord or slander may grow between the Queen and 
her people or the great men of the realm (' or which may 
produce other mischiefs). 

» S. D. Art. 94., 

» [«. V. Burdett. 4 B. & Aid. 95 ; Ji. v. Harveu, 2 B. & C. 257.] 
" S. D. Art. 95. 
nSEdw. 1,0. 34. 

' See Starkio on S lander, by Folkard, 670-2. The definition is very vague and the doctrine 
exceedingly doubtful.] 



94 A DT0E8T OF 



• CH AFTER X. 

offences against external public tranquillity, 
offences against foreign nations. 

'Article 126. 

violation of ambassadors* privileges. 

^ [Every oue is guilty of a misdemeauor who, by force 
or personal restraint, violates any privilege conferred 
upon the diplomatic representatives of foreign countries 
by the law of nations, as collected by Her Majesty's Courts 
from the practice of different nations, and the authority 
of writers thereon. ; 

^Article 12*7. 

arrest of ambassador. 

* Every one commits a misdemeanor who sets forth or 
prosecutes or executes any writ or process whereby is 
arrested or imprisoned the person of any ambassador or 
other public minister of any foreign prince or state, 
authorized and received as such by Her Majesty, or any 
domestic servant of any such ambassador or minister, 
registered as such in the office of a principal secretary of 
state, or in the office of the sheriff of London and Middle- 
sex. 

1 S. D. Art. 96. 

* [Triguet and Others v. Bath, 3 Burr. 1481. As to what constitutes authority on a ques- 
tion of international law, see li. v. Keyn, L. R. 2 Ex. O. 63.] 

8 S, D. Art. 97. 

* [7 Anne, o. 12, ss. 3, 4, 6.] It is doubtful if this article and moria especially the pro- 
visions as to domestic servants, would, if the case should arise, be held to be in force in 
Canada. 



THE CRIMINAL LAW. 9S 

' Article 128. 
libels on foreign powers. 

- [Every ono is guilty of a misdemeanor who publishes 
any libel tending to degrade, revile, or expose to hatred 
and contempt any foreign prince or potentate, ambassador 
or other foreign dignitary, with intent to disturb peace 
and friendship between the United Kingdom and the 
country to which any such person belongs. 

The word " publish " is used here in the same sense as 
in Article 343, and the word " libel " in the second of the 
two senses specified in Article 340. 

(Submitted.) Nothing is an offence against this Article 
which is a fair criticism on a matter of public interest as 
defined in Article 34Y. 

^ Article 129. 

interference in foreign hostilities. 

* Every one commits a misdemeanor, and is liable to 
fine and imprisonment, with or without hard labour, or 
either of such punishments, at the discretion of the 
Court, who does any of the following acts ''without the 

1 S. D. Art. 99. 

s {II. V. D'Eon, 1 W. Bl. 510 ; R. v. Lord G. Gordon, 22 St. Tr. 213-233. (This was the case 
of a libel on Marie Antoinette seven years after the defendant's acquittal for high 
treason.) It. v. Vint (1801.) Vint wrote of the Emperor Paul, " The Emperor of Russia 
is rendering himself obnoxious to his subjects by various acts of tyranny, and ridiculous 
in the eyes of Europe by his inconsistency." Starkie (by Folkard), 6C9. H, v. Peltier, 28 
State Trials, 589 ; 6th Rep. P. L. Com. Art. 50, p. 34. Draft Code, s. 104.] 

"S. D. Art. 100; the Act on which this article is founded extends to all Her Majesty's 
dominions, including adjacent territorial waters (s. 2) but is to be brought into operation 
in any British possession by proclamation of the Governor thereof, which he is to issue as 
soonasmay be after he receives notice of the Act (s. 8). The Act and the letter of the 
Secretary of State for the Colonies forwarding copies of it, were published in the Royal 
Gazette (1870-71, p. 204) but I am not aware that any proclamation of the Governor 
General in the usual sense of that word has ever been published putting this Act in force 
in Canada. 59 Geo. 3.c. 69, repealed by 33 & 34 Vict. c. 90, s. 31, was held to be in 
force in Upper Canada in R. v. Schram, 14 U. C. C. P. 318. See The Atalaya, 6 Q. L. R. 
174. 

^ 33 & 34 Vict. c. 90 (redrawn). As to the history of this of enoe, see 3 Hist. Or. LaWi 
257-62. 

^ Sect. 15.] 



96 A DIGEST OF 



[license of Her Majesty under her sign manual, or signified 
by Order in Council, or by proclamation, that is to say — 

(a.) ^ who, within the limits of Her Majesty's dominions, 
prepares or fits out any naval or military expedition to 
proceed against the dominions of any ^ friendly state, or 
is engaged in such preparation or fitting-out, or assists 
therein, or is employed in any capacity in such expedi- 
tion ; or 

(b.) ^ who, being a British subject, within or without 
Her Majesty's dominions, accepts or agrees to accept any 
commission or engagement in the military or naval ser- 
vice of any foreign state at war w^ith any friendly state, 
or, whether a British subject or not, within Her Majesty's 
dominions, induces any other person to accept or agree to 
accept any commission or engagement in the military or 
naval service of any such foreign state as aforesaid ; or 

(c.) ^ who, being a British subject, quits or goes on 
board any ship with a view of quitting Her Majesty's 
dominions, with intent to accept any commission or 
engagement in the military or naval service of any 
foreign state at war with a friendly state, or, whether a 
British subject or not, within Her Majesty's dominions, 
induces any other person to quit or to go on board any 
ship with a view of quitting Her Majesty's dominions 
w^ith the like intent ; or 

{(l.) '^ who, being the master or owner of any ship, 
knowingly either takes on board, or engages to take on 
board, or has on board such ship within Her Majesty's 
dominions any illegally enlisted person as defined in 
Article 130 ; or 

' Sect. 11. The purchase of guns and ammunition and their shinment for the purpose 
of being put on board a ship in a foreign port with a Itnowledge of the purchaser and 
shipper that they are to be used in a hostile demonstration against a friendly state is a 
fitting out of an expedition within the statute; 7^ v. Sandoval, 16 Cox, C. C. 200. 

- [" Friendly state " means " any foreign state at peace with Her Majesty (sect. 4)." 

3 33A:34VIct. c, 90, s. 4. 

* Sect. 5. • 

'Sect. 7.] -— .- 



THE CRIMINAL LAW. 9T 

{{e.) * who, within Her Majesty's dominions, with in- 
tent or knowledge, or having reasonable cause to believe 
that the same will be employed in the military or naval 
service of any foreign state at war with any friendly state, 

builds, agrees to build, causes to be built, equips, des- 
patches, or causes or allows to be despatched, any ship, or 
issues or delivers any commission for any ship ; 

Provided that a person building, causing to be built, or 
equipping a ship in any of the cases aforesaid, in pursu- 
ance of a contract made before the commencement of such 
war as aforesaid, is not liable to any of the penalties 
specified in this Article in respect of such building or 
equipping — 

(i.) if forthwith upon a proclamation of neutrality 
being issued by Her Majesty he gives notice to the Sec- 
retary of State that he is so building, causing to be built, 
or equipping such ship, and furnishes such particulars of 
the contract and of any matters relating to, or done, or to 
be done under the contract as may be required by the 
Secretary of State ; and 

(ii.) if he gives such security, and takes and permits 
to be taken such other measures, if any, as the Secretary 
of State may prescribe for ensuring that such ship shall 
not be despatched, delivered, or removed without the 
Hcense of Her Majesty until the termination of such war 
as aforesaid. 



■ : ' '^Article 130. ■ : 

ships, etc., referred to in article 129 to be 
forfeited — definitions. 

^ All ships and their equipments used in or forming 
part of any such expedition as is mentioned in Article 129 
(fl.), or in respect of which is committed any of the 

1 [Sect. 8 (redrawn)]. 

= S. D. Art. 101. 

" [See section referred to in ihe Article mentioned.] 

H 



/ 



98 A DIGEST OF 



[offences defined in Article 129 (e), and all arms and 
munitions of war used in forming part of any such, 
expedition as is mentioned in Article 129 (a.), are for- 
feited to Her Majesty. 

The expression "illegally enlisted person"' in Article 
129 (d.) means — 

(i.) any person who, being a British subject, within or 
without the dominions of Her Majesty, has, without the 
license of Her Majesty, accepted or agreed to accept any 
commission or engagement in the military or naval ser- 
vice of any foreign state at war with a friendly state ; 

(ii.) any person, being a British subject, who, without 
the license of Her Majesty, is about to quit Her Majesty's 
dominions with intent to accept any commission or en- 
gagement in the military or naval service of any foreign 
state at war with a friendly state ; 

(iii.) any person who has been induced to embark 
under a misrepresentation or false representation of the 
service in which such person is to be engaged, with the 
intent or in order that such person may accept or agree 
to accept any commission or engagement in the military 
or naval service of any foreign state at war with a 
friendly state. 

Every ship referred to in Article 129 (d.) is to be de- 
tained until the trial and conviction or acquittal of the 
master or owner, and until all penalties inflicted on the 
master or owner have been paid, or the master or owner 
has given security for the payment of such penalties to 
the satisfaction of two justices of the peace, or other 
magistrate or magistrates having the authority of two 
justices of the peace ; and 

All illegally enlisted persons must, immediately on 
the discovery of the offence, be taken on shore, and must 
not be allowed to return to the ship. 



THE CRIMINAL LAW. 99 



^ Article 131. 

incbeasing force of ships for foreign belligerents, 
and procuring enlistment by misrepresentation. 

[Every one is guilty of a misdemeanor, and is liable] to 
fine and imprisonment with or without hard labor, or to 
either of such punishments at the discretion of the court, 
[who 

[a.) "within the dominions of Her Majesty, and with- 
out such licence as is mentioned in Article 129, by add- 
ing to the number of the guns, or by changing those on 
board for other guns, or by the addition of any equip- 
ment for war, increases or augments, or procures to be 
increased or augmented, or is knowingly concerned iu 
increasing or augmenting, the warlike force of any ship 
which at the time of her being within the dominions of 
Her Majesty was a ship in the military or naval service 
of any foreign state at war with any friendly state ; or 

{b.) ^ who induces any other person to quit Her Ma- 
jesty's dominions, or to embark on any ship within Her 
Majesty's dominions, under a misrepresentation or false 
representation of the service in which such person is to 
be engaged, with the intent or in order that such person 
may accept or agree to accept any commission or engage- 
ment in the military or naval service of any foreign state 
at war with a friendly state. 

• "Article 132. . 

presumption of knowledge of purpose for which 

ship is built. 

Where any ship is built by order of or on behalf of 
any foreign state when at war with a friendly state, or is 

S, D. Art. 102. 

2 33 & 34 Vict. 0. 90, s, 10. 

3 Sect. 6. 

* S. D. Art. 103. 

6 33 & 34 Viot. 0.90,8.9. 

h2 



100 A DIGEST OF 



[delivered to or to the order of such, foreign state, or any 
person who to the knowledge of the person building is 
an agent of such foreign state, or is paid for by such 
foreign state or such agent, and is employed in the mili- 
tary or naval service of such foreign state, such ship 
must, until the contrary is proved, be deemed to have 
been built with a view to being so employed, and the 
burden of proving that he did not know that the ship 
was intended to be so employed in the military or naval 
service of such foreign state lies on the builder of such 
ship.] 



TEE CBUIINAL LAW. 101 



CHAPTER XI. 

OFFENCES AGAINST PERSONS ON THE HIGH SEAS— PIRACY— 

SLAVE-TRADING. 

^ Article 133. 

PIRACY. 

^ [Piracy by the law of nations is — 

Taking a ship on the high seas or within the jurisdic- 
tion of the Lord High Admiral from the possession or 
control of those who are lawfully entitled to it, and car- 
rying away the ship itself, or any of its goods, tackle, 
apparel, or furniture, under circumstances which would 
have amounted to robbery if the act had been done within 
the body of an English county. 

Whoever commits piracy, by the law of nations is liable 
to the same punishment as if the act constituting piracy 

1 S. D. Art. 104. 

- [The definition is founded on one given by Sir Charles Hedges in i?. v. Dawson, 13 St. 
Tr. 454, and recognized by the Judicial Committee of the Privy Council in A. G. of Hong 
Kong V. Kiook-a-smg, L. R. 5 P. C. 179, 199 ; see, too, 7th Rep. C. L. C. p. 70. As to the 
punishment, the text gives what I suppose is the result of 28 Hen. 8, o. 15, as, 2 & 3 ; 89 
Geo. 3, c. 37, s. 1 ; 1 Geo. 4, c. 90, s. 1 ; 7 & 8 Geo. 4, c. 28, s. 12. The doubt expressed at 
the end of the Article is founded on the absence of any express authority for the affirma- 
tive of the proposition, and on the absurdity of the negative., If a Queen's ship were to 
fall in with an armed vessel belonging to no state, and obviously cruising for piratical 
purposes, would the commanding officer hesitate to seize that vessel because it had not 
actually taken a prize? It seems equally difficult to suppose that the vessel would be 
permitted to escape, or that it could lawfully be arrested if the crew were not pirates. 
The language of several of the statutes given in Articles 137, 138, and 139, seems to imply 
that a pirate is the name of a known class of persons, like a soldier or sailor, and that a 
man may be a pirate though he bos n;.''er actually robbed, as he may be a soldier though 
he has not actually fought. By 13 <fe U Vict. o. 26 the Admiralty Courts are empowered 
when any of Her Miyesty's ships attack or are engaged with any persons alleged to be 
pirates afloat or ashore, to "take cognizance of and determine whether the persons or any 
" of them so attacked or engaged were pirates." The object of the Act was to determine 
the amount of certain rewards to be paid to the captors ; no definition of pirates is given. 
See 2 Hist. Cr. Law, pp. 27-28, and Draft Code, s. 105.] 



102 A DIGEST OF 



had been committed within the] jurisdiction of the Court 
before which the ofl'ender is brought for trial.^ 

[It is doubtful whether persons cruising in armed ves- 
sels, with intent to commit piracies, are pirates or not. 

^Article 134. 

piracy with violence. 

^ Every one commits felony and must upon conviction 
thereof be sentenced to death who, with intent to commit 
or at the time of or immediately before or immediately 
after committing the crime of piracy in respect of any 
ship or vessel, assaults with intent to murder any person 
on board of or belonging to such ship or vessel, or stabs, 
cuts, or wounds any such person, or unlawfully does any 
act by which the life of such person may be endangered. 

* Article 135. 

committing acts of hostility under foreign 

commission. 

^ Every one is deemed to be a pirate who, being a 
natural-born subject of Her Majesty, or denizen of this 
kingdom, commits any piracy, robbery, or act of hostility 
against others, Her Majesty's subjects, on the sea, under 
color of any commission from any foreign prince or 
state, or pretence of authority from any person whatever. 

^Article 136. 

ADHERING ON THE SEA TO THE QUEEN'S ENEMIES. 

'^ Every one is deemed to be a pirate who, being a 

1 R. S. C. 0. 174, 8. 8; 12 & 13 Vict. o. 96, ss. 1, 2. 

2 S. D. Art. 105. 

3 [7 Will. 4 & 1 Vict. 0. 88, s. 2 ; Draft Code, s. IOC :] 12 & 13 Vict. c. 96, ss. 1 & 2. 
<S.D. /rt. 106, 

[11 &12 Will. 3, c. 7, 8. 8. For this and the four following Articles, see Draft Code, ss. 
107-109.] 
" S. D. Art. 107. 
' [18 Geo. 2, c. 30.] 



THE CRIMINAL LAW. 103 

[natural-born subject or denizen of Her Majesty, during 
any war commits any hostility against Her Majesty's 
subjects upon the sea, or in any haven, river, creek or 
place where the admiral has power or jurisdiction, by 
virtue or under color of any commission from any of 
Her Majesty's enemies, oris in any way adherent, or gives 
aid or comfort, to Her Majesty's enemies upon the sea or 
in any other such place as aforesaid. 

* Article 13*7. 
boarding ships and throwing cargo overboard. 

"^ Every one is deemed to be a pirate who, belonging to 
any ship or vessel whatever, upon meeting any merchant 
ship or vessel on the high seas, or in any port, haven, or 
creek, forcibly boards and enters into such ship or vessel, 
and though he does not seize or carry off such ship or 
vessel, throws overboard or destroys any part of the goods 
or merchandises belonging to such ship or vessel. 

■ ^ Article 188. 

masters and seamen favoring pirates. 

* Every one is deemed to be a pirate who, being the 
commander or master of any ship, or a seaman or mariner 
in any place where the admiral has jurisdiction, betrays 
his trust, and turns pirate, enemy, or rebel, and piratically 
and feloniously runs away with his ship, or any barge, 
boat, ordnance, ammunition, goods, or merchandise ; or 
yields them up voluntarily to any pirate ; or 
brings any seducing message from any pirate, enemy, 
or rebel ; or 

»S.D. Art. 108. 

2 [8 Geo. 1, c. 24, s. 1 (last part).] 
» S. D. Art. 109. 

* [11 Will. 3, 0. 7, s. 8. Section 9 enacts in substance that accessories to piracy shall 
be punished as pirates.] 



104 A DIGEST OF 



[consults, combines, or confederates with or attempts to 
corrupt any commander, master, officer, or mariner to 
yield up or run away with any ship, goods or merchan- 
dise, or turn pirate or go over to pirates ; or 

lays violent hands on his commander whereby to hinder 
him from fighting in defence of his ship and goods com- 
mitted to his trust ; or 

confines his master, or makes or endeavors to make a 
revolt in the ship (' even if the object of such revolt is to 
redress real grievances). 

^ Article 139. 
trading with pirates and conspiring with them. 

^ Every one is deemed to be a pirate who in any wise 
trades with any pirate by truck, barter, exchange, or in 
any other manner, or furnishes any pirate, felon, or robber 
upon the seas with any ammunition, provision, or stores 
of any kind ; or 

fits out any ship or vessel knowingly and with a de- 
sign to trade with, or supply, or correspond with any 
pirate, felon, or robber on the seas ; or 

in any way consults, combines, confederates, or cor- 
responds with any pirate, felon, or robber on the seas 
knowing him to be guilty of any such piracy, felony, or 
robbery.] 

^ Article 140. ; - 

punishment for statutory piracies. 

° Every one who commits any of the offences defined in 

' [The words in parenthnses give the effect of J}, v. Haatinga, 1 Moody, 82 ; R. v. 
JU'Gregor, 1 C. & K. 429. A s to *' confines," see R. v. Jcnca, 11 Cox, C. C. 393.] 

2 S. D. Art. 110. 

3 [8 Geo. 1, c. 24, s. 1 (first part).] 
*S.D.Art.lll. 

^ By 7 Wm. 4 & 1 Viet- c. 88, e. 3, the offender was liable to be transported for life or for 
any term not less than fifteen years, or to be imprisoned for a term not exceeding three 
years. By 12 & 13 Vict. o. 96, s. 2, the offender, if tried in a colony, was liable to the 



THE CRIMINAL LAW. 105 

Articles ] 35-139, both inclusive, is liable to imprison- 
ment for three years, and perhaps for life. 

* Article 141. 

not fighting pirates. 

^ [Every one commits a misdemeanor, and must, on con- 
viction thereof, be imprisoned for six months, who being 
a commander, master, or any officer or seaman, or mariner 
of any merchant ship which carries guns and arms, does 
not when attacked by any pirate, or by any ship on which 
any pirate is on board, fight and endeavor to defend 
himself and his vessel from being taken by such pirate, 
or who utters any words to discourage the other mariners 
from defending the ship, so that the ship falls into the 
hands of such pirate. 

■* Article 142. 

slave-trading defined. 

^ Each of the following acts and every contract to do any 
one of them is an act of slave-trading : — 

{a.) To deal or trade in, purchase, sell, barter, or trans- 
fer slaves or persons intended to be dealt with as slaves. 

{h.) To carry away or remove slaves or other persons as, 
or in order to their being dealt with as, slaves. 

(c.) To ii iport or bring into any place whatsoever slaves 
or other persons as, or in order to their being dealt with 
as, slaves. 

{d.) To ship, tranship, embark, receive, detain or confine 
on board any ^vessel slaves or other persons — 

punishment prescribed by any law then (1849) in force in England. 16 & 17 Vict. c. 99 
introduced penal servitude in lieu of transportation, and by 20 & 21 Vict. c. 3, s. 2, it was 
provided that no person should be sentenced to transportation after July 1st, 1857. See 
also R. S. C. c. 181, s. 24, (Art. 17.) 

1 S. D. Art. 112. 

= [8 Geo. 1, 0. 24, s. 6, Draft Code, s. 110.] 

=■8.0. Art. 113. 

^ [5 Geo. 4, c. 113, 8. 2. The language of this Act is very elaborate, and I have not 
noticed every deviation from it- I believe that this and the next Article give its effect 
quite correctly, though in a very different shape. For the history of these Acts, see 3 
Hist. Or, Law, 255-6. 

'" Ship, vessel, or boat.] 



106 A DIGEST OF 



[for the purpose of their boing carried away or removed 
as, or iu order to their being dealt with as, slaves ; or 

for the purjjose of their being imported into any place 
whatever as, or iu order to their being dealt with as, 
slaves. 

(e.) To fit out, man, navigate, equip, dispatch, use, em- 
ploy, let, or take to freight, or on hire, any ' vessel, iu order 
to do any act of slave-trading before meutioned. 

(/.) To lend or advance, or become security for the loau 
or advance of, money, goods or effects, employed or to be 
employed iu any act of slave-trading before meutioned. 

(g*.) To become guarantee or security for ageuts em- 
ployed or to be employed iu any act of slave-trading 
before mentioned. 

(h.) To engage iu any other manner in any act of slave- 
trading before mentioned, directly or indirectly, as a 
partner, agent or otherwise. 

(i.) To ship, tranship, lade, receive, or put on board of 
any ^ vessel money, goods, or effects to be employed in 
any act of slave-trading before mentioned. 

{J.) To take the charge or command, or to navigate, or 
enter and embark on board any ' vessel iu " any capacity, 
knowing that such ' vessel is employed iu any act of 
slave-trading before mentioned, or is intended to be so 
employed upon the voyage or upon the occasion in which 
the embarkation takes place. 

(k.) To insure slaves or property employed or intended 
to be employed in slave-trading. 

^ Article 143. 
piratical slave-tradina. 
* Every subject of Her Majesty, and every person resi- 

> "Ship, vessel, or boat."] 

2 " As captain, master, mate, petty officer, surgeon, supercargo, seaman, marine, or ser- 
vant, or in any other capacity."] 

»S.D. Art.n4. 

H5Geo. 4. 0.113, s. 9, redrawn.] As to punishment see 7 Wm. 4 & 1 Vict. o. 91, s. 1, and 
Art. 140 note. 



THE CRIMINAL LAW. 107 

[dent orbeingin any of Her Majesty's dominions ' commits 
piracy, felony, and robbery, and is liable] to imprison- 
ment for three years and perhaps for life [who upon the 
high seas, or in any place where the admiral has juris- 
diction, knowingly and wilfully does or assists in doing 
any of the following things, that is to say : — 

{a.) Who carries away, conveys, or removes any person 

as a slave ; or 

for the purpose of his being imported or brought as a 
slave into any ^ place whatsoever ; or 

for the purpose of his being used, transferred, sold or 
dealt with as a slave, or 

[b.) Who ships, embarks, receives, detains, or confines 
any person on board any vessel for the purpose of his 
being carried away, conveyed, or removed as a slave ; or 

for the purpose of his being imported or brought as a 
slave into any " place whatsoever ; or 

for the purpose of his being sold, transferred, used, or 
dealt with as a slave. 

' Article 144. 
punishment of slave-trading. . . , 

^Everyone f owing allegiance to Her Ma,jesty) com- 
mits felony, and is liable] to imprisonment for a term not 
exceeding five years and not less than three years [who 
(in any part of the world) does any of the acts of slave- 
trading specified in Article 142, clauses (a), (&.), (c), {d.), 
(e.) ; or 

knowingly and wilfully does any of the acts of slave- 

^ [" Dominions, ports, settlements) factories, or territories now or hereafter belonging 
to Her Majesty, or being in Her Majesty's occupation or possession . " 

""Island, colony, country, territory, or place."] 
• "S.D.Art. Ho. 

•* [5 Geo. 4, c. n3, s. 10 (redrawn), 

^ These words are inserted to give the effect of R. v. Zulucta, 1 C. & K. 215, 226-7. See, 
however, Santos v. Illidge, 8 C. B. (N.S.) 861, in which the Court of Exchequer Chamber 
was equally divided upon a very similar though not identical point.] 



108 A DIGEST OF 



[trading specifiod in Article 142, clauses (/.), (g*.), (/«.), (t.), 
or {k.) 

^ Aeticle 145. 

serving on a slave-ship, felony. 

^ Every one commits the same offence, and is liable to 
the same punishment, as is specified in the last Article, 
who takes charge or command, or navigates, or embarks 
on board any vessel as captain, master, mate, surgeon, or 
supercargo, or contracts to do so, knowing that such 
vessel is actually employed, or is on that voyage or occasion 
intended to be employed, in any act of slave-trading. 

^ Article 146. 

serving on a slave-ship, misdemeanor. 

■* Every one commits a misdemeanor, and is liable to 
two years' imprisonment, who with the knowledge 
mentioned in the last Article does any of the things 
mentioned in that Article, as petty officer, seaman, marine, 
or servant, or in any other capacity not specifically men- 
tioned therein.] 

1 S. D. Art. 116. 

2 [5 Geo. 4, 0. 113, c.lO.] 
8 8. D. Art. 117. 
*[5Geo.4,o.ll3, a. 11.] 



THE CRIMINAL LAW. 



109 



TART III. 



ABUSES AND OBSTRU(rriONS OF PUBLIC AUTHORITY. 



CHAP. XII. — AnusBs of Author- 
ity — Oi'i'imssiON — Extortion — 
Fkaii)— NFXiLixrr of Duty— Rh- 
FUSA I, TO Act. 

CHAP. XIII. — Disobedience to 
Lawful Orders. 

CHAP. XIV.— Bribery and Cor- 
Rui'TioN — Sale of Offices. 

CHAP. XV. — Misleading Justice 
— Perjury— False Swearing — 



Subornation — Administering 
Extra-.! UDiciAL Oaths. — False 
Certificate as to Execution. 
CM A K XVI. — EscAi'B — Rescue — 
Prison Breach — Misi'Risions — 
Compounding Offences — Taking 
OR Advertizing Rewards for 
Recovery of Stolen Peoi'brty. 



CHAPTER XII. 



ABUSES OF AUTHORITY, OPPRESSION, EXTORTION, FRAUD, 
NEGLECT OF DUTY— REFUSAL TO ACT. 



Article 141. 



" PUBLIC OFFICER " DEFINED. 

^ [The expression " public olScer," in this chapter, 
means a person invested with authority to execute any 
public duty, and legally bound to do so, but does not in- 
clude any member of either House of Parliament as such, 
or any ecclesiastical, naval, or military officer acting in 
the discharge of duties for the due discharge of which he 
can be made accountable only by an ecclesiastical, naval, 
or military court. 

» S. D. Art. 118. 

° [See 7 Rep. Crim. Law Cre. o. iv. p. 153, and cf. 5 Rep. Crim. Law Crs. p. 40. It would 
be foreign to the purpose of this work to discuss the question of the limits of the jurisdic- 
tion of the Courts of Common Law. and Ecclesiastical and Military Courts.] 



110 A DIGEST OF 



^Aeticle 148. 

EXTORTION AND OPPRESSION BY PUBLIC OFFICERS. 

^ [Every public officer commits a misdemeanor who, in 
the exercise, or under color of exercising the duties of 
his office, does any illegal act, or abuses any discretionary 
power with which he is invested by law from an impro- 
per motive, the existence of which motive may be inferred 
either from the nature of the act, or from the circum- 
stances of the case. But an illegal exercise of authority, 
caused by a mistake as to the law, made in good faith, is 
not a misdemeanor within this Article. 

^ If the illegal act consists in taking under color of 
office from any person any money or valuable thing 
which is not due from him at the time when it is taken, 
the offence is called " extortion." 

If it consists in inflicting upon any person any bodily 
harm, imprisonment, or other injury, not being extortion, 
the offence is called " oppression." 

( Illustrations. 

(l.) *The Lord Chief Justice of England passes upon B and C sen- 
tences for similar offences so disproportionate as to show partiality. 
He commits oppression. 

(2.) *The Governor-General of India wrongfully compels a native 
prince to pay sums of money to the Indian government. He commits 
extortion. 



1 S. D. Art. 119. 

2 [li. V. Wyat, 1 Salk. 380; 7?. v. BembriJge, 3 Doug. 327, and 22 St. Tr. 1-159; Bacon, 
Abridgment, tit. " Offioo and Officer," N. ; R. v. Borron, 3 B. & Aid. 434 ; and see cases 
referred to in the Illustrations.] 

» li. V. Tisdale, 20 U. C. Q. B. 272 ; Parsons v. Crabbe, 31 U. C. C. P. 151. 

* r4th A:tiolo of impeaohmenl, against Sorogfcs, C.J., 8 St. Tr. 199. 

' This was the gist of the Cheyte Singh charge in the impeachment of Warren Hast- 
ings. It is remarkable that neither in Debrett's History of the Trial, nor in Mr. Mill's 
History of India, nor in Lord Maoaulay's elaborate Essay on Warren Hastings, nor in 
Marshman's History of India, are the charges against Hastings distinctly stated. It 
seems to a lawyer natural to give at least an abstract of the indiotment in order to render 
an account of a trial intelligible, but historians are apt to take a different view. Lord] 



THE CRIMINAL LAW. Ill 



[(3). ' A and B, justices of the peace, refuse licenses to tlie keeper's of 
public houses, because thoy refuse to vote as the justices wish. A andB 
commit oppression. 

(4.) ^ A, a justice of the peace, sends his servant to the house of correc- 
tion for being .«aucy and giving too much corn to his horses. A commits 
oppression. 

(5.) ■' A, a justice, acting as such, orders B to be whipped, without such 
proof or information as the law requires. A commits oppression. 

(G.) ' A, a constable, having B in custody on a warrant for an assault 
obtains money from B upon color and pretence that A will procure the 
warrant to be discharged. A commits extortion. 

(7.) "A, a justice, commits B,a pauper, to prison for refusing to answer 
(questions wnich A had a right to put as to B's settlement, believing in 
good faith that A had a legal right to commit B. A does not commit a 
misdemeanor. 

(8.) •'A, a justice, illegally refuses to accept bail for a person entitled to 
be bailed, under an opinion, hastily adopted in a crisis of real danger, 
that it was right to do so. A does not commit a misdemeanor. 



^Article 149. 

frauds and breaches of trust by officers. 

* Every public officer commits a misdemeanor who, in 
the discharge of the duties of his office, commits any 
fraud or breach of trust affecting the public, whether 
such fraud or breach of trust would have been criminal 
or not if committed against a private person. 



[Macaulay in particular is so muoh interested in Burke's rhetoric that he omits to say 
what it was all about. In Mr. Massey's History of George III., vol. iii. p. 337, Burke's 
summary of the ten charges which he opened is given, but Mr. Massey observes that only 
one of the ten was distinct and substantive. The transactions with Cheyte Singh are 
described in Miil's British India, iv. 321, &o., in Lord Macaulay's Essays, p. 620 (ed. of 
1850), and in Mnishman's History, i. 424. 
1 R. V. WilUavu, 3 Burr. 1317. 

* R. V. Okeu, 8 Mod. 46. According to R. v. Morfit, Rus. & R. 307, decided long after- 
wards, A might have committed his servant for theft. 

" See precedent of indictment, 2 Chit. Crim. Law, 236. 

* Precedent of indictment, 2 Chit. Grim. Law, 293. .„_-_.-- -_—,—- 
^ R. T. Jackson, 1 T. R. 653. . ' 

" iZ. V. JSac/ffec, 4 Q. B. 475.] 
' S. D. Art. 121. 

' [See cases in Illustrations.] As to telegraph operators divulging, without lawful 
authority, the contents of telegrams, see R. S. C. c. 134, ss. 3, 4. 



112 A DIGEST OF 



Illustrations. 

[(1.) ' A, an accountpnt in the oftice of the Paymaster-General, fraudu- 
lently omits to make certain entries in his accounts, whereby he enables 
the caehier to retain large sums of money in his own possession, and to 
appropriate the interest on such sums to himself after the time when they 
ought to have been paid to the Crown. A commits a misdemeanor. 

(2.) ^ A, a commissary-general of stores in the West Indies, makes con- 
tracts with B to supply stores, on the condition that B should divide the 
profits with A. A commits a misdemeanor. 



^ Article 150. 
neglect op official duty. 

* Every public officer commits a misdemeanor who 
wilfully neglects to perform any duty which he is bound 
either by common law or by statute to perform, provided 
that the discharge of such duty is not attended with 
greater danger than a man of ordinary firmness and 
activity may be expected to encounter. 

Illustrations. 

(1.) ^ A, the mayor of B, neglects to perform various acts which it was in 
liis power to do, and which a man of ordinary prudence, firmness, and 
activity, might have been expected to do, in order to suppress riots in B. 
A is guilty of a misdemeanor. 

(2.) ® A, the Lord Mayor of London, refrains from making the procla- 
mation in the Riot Act, and from ordering soldiers to disperse a mob> 
because he is afraid to do so, in circumstances in which a man of ordinary 
courage would not have been afraid. A commits a misdemeanor. 

(3.) ' A, a sheriff, refuses to execute a criminal condemned to death. A 
commits a misdemeanor. 



1 [R. V. Bemhridoe, 3 Doug. 332 ; 22 St. Tr. 1-159. This would now, in England, be an 
oflFenoo in the case of a private person under 38 & 39 Viot. c. '2i, s. 2. See S. D. Art. 352. 

^li.Y. Valendne Jones, 31 St. Tr. 251.] 

•■■S.D. Art. 122. 

*[R. V. Wuat, 1 Silk. 3Sl; Ji.v. Bembridac, 3 Doug. 332; 22 St. Tr. i-15l, • Comyn's 
Digest, tit. Indiotmoiit, D. ; E. \. Jones, Strange, lllfi ; 4 Steph. Com. 32( 

^ li. v. Finney, o C. k P. 254, and 3 B. k Ad. 947. This is the c .ae t' t..9 Bristol riots. 
Mr. Pinney was, in fact, acquitted ; but the case involves the priiiciplecf the illustration. 

" It. v.Kennetl (Laid Mayor ia 1789), printed in 5 C. <t P. 2S2, a^ a nott to It. v. Pinney. 

' It. V. Antrobus, 2 A. & E. 798.] 



THE CRIMINAL LAW. 113 



[(4.) ^ A, a coroner, refuses to take an inquest on abody,afternotice that 
it is lying dead in his jurisdiction. A commits a misdemeanor. 

(5.) ^ A, a constable, wilfully refuses to arrest a person who commits a 
felony in his presence. A commits a misdemeanor. 

(6.) " A, a clergyman of the Church of England, refuses to solemnize 
marriage between persons who might lawfully be married and who tender 
themselves for that purpose. He commits a misdemeanor.] 

(7.) ^ A, an overseer of the poor, wilfully neglects to perform the duty 
imposed upon him of accounting for money received by him as such 
overseer. A commits a misdemeanor. 



Article 151. 
misconduct of officers intrusted with execution 

OF WRITS. 

^ Every one is guilty of a misdemeanor, and liable to a 
fine and imprisonment, in the discretion of the court, who, 
being a sheriff, deputy sheriff, coroner, elisor, bailiff, con- 
stable or other officer intrusted with the execution of any 
writ, warrant or process, wilfully misconducts himself in 
the execution of the same, or wilfully and without the 
eonsent of the person in whose favor the writ, warrant or 
process was issued, makes any false return thereto. 

t' 2 Hale, P. C. 58 ; and see precedent of indictment, 2 Chit. Crim. Law, 255. 

= 2 Hawk. P. C. p. 129 ; (/. p. 115. 

' R. V. Janes, 2 Den. 1. Tlie conviction in this case was quashed on the narrow ground 
that the parties did not sufficiently tender themselves for marriage. The objection that 
the olTence was only an oeclesiaatical one was taken, but no judgment was delivered on 
it. A refusal to bury would probably stand on the same footing. By 1 Edw. 6, c. 1, it is 
enacted that a minister ''shall not without lawful cause deny " (thelSacrament) " to any 
person that will dovoutly and humbly desire it.," An indictment for such a denial 
would be incongruous and indecent, but it is ditflcult to find any definite legal ground for 
saying that it would not lie. (See Jcnkinx v. Oook, L. 11. 1 P. D. 80.)] 

* P. V. Matthews, 2 Kerr 543. 

'' R. S. C. c. 173, s. 29 : As to disobedience of orders and neglect of duty by certain 
peace officers, see K. S. C. c. 45, s. 18 (N■orth-^Vest Mounted Police) ; 23 Vict. (P.O.) o. 29, 
6. 4; R. S. C. c. 38, s. 55, and 51 Vict. (D.) c. 29, s. 286 (railway constables) ; R. S.|C. c. 89, s, 
5 (harbor and river police, Quebec) ; R. S. C. c. 184, s. 6 (Dominion police). As to pence 
officers not conveying to custom house goods detained by them as liable to seizure under 
the Customs Acts, see R. S. C. c. 32, s. 219. As to defaults, &c., by census officers, see 
R. S. C. 0. 58, 8. 15. 

_. ._-^^-t-~— — -' 



114 A DIGEST OF 



^ Aeticle 152. 

refusal to serve an office. 

^ [Every one commits a misdemeanor who unlawfully 
refuses or omits to take upon himself and serve any 
public office whi 'h he is by law required to accept if duly 
appointed ; but this Article does not extend to cases in 
which any other penalty is imposed by law for such re- 
fusal or neglect, or to any case in which by law or by 
custom any person is permitted to make any composition 
in place of serving any office. 

Illustration. 

A person may be indicted for refusing to exercise the office of overseer 
of the poor or parish constable.] 



1 S. D. Art. 123. 

= [R- V. Bower, 1 B. & C. 585 : and see 5th Report, C. L. C. 41, where many authorities 
are cited. Also 1 Rugs. Cr. 3U7-8.] 



THE CRIMINAL LAW. . 115 



CHAPTER XIII. 
DISOBEDIENCE TO LAWFUL ORDERS. 

' Article 153. 

disobedience to a statute. 

[Every one commits a misd(3meauor who -wilfully dis- 
obeys any statute by doing any act which it forbids or by 

1 S. D. Art.'.124, 

- [R. V. Wright, 1 Burr. 543 ; R. v. Harris, 4 T. R. 205; 5th Report, C. L. C. 43 ; 2 Hawk. 
P. C. 289. Draft Code, s. 114.J R. S. C. c. 173, s. 25. The wilful disobedience of an Order 
in Council authorized by statute (R. v. Harrvi, 4T. R. 202) or of an order made by Com- 
missioners under a statute, the matter of which concerns the public in general {R. v. 
Walker, L. R. 10 Q. B. 355) is an indictable misdemeanor at common law. 

A wilful disobedience of a statute is punishable by indictment. 

(a.) If the statute specify no other mode of proceeding (2 Hawk. c. 25, s. 4 ; R. v. Davis, 
Sayer 133 : R. v. Saiiishury, 4 T. R. 451 ; R. v. Price, 11 A. & E. 727.) 

(6.) Although another mode of proceeding is specified, 

(1.) If the ofi-ence were indictable at common law (7?.v. Robinson, 2 Burr. 799; R.\. Wigg, 
2 Ld. Raymond, 1163 ; R. v. Baltne, Cowp. 848; R. v. CarlisL, 3 B& Aid. 161; 2 Hale, 
191) ; or 

(2.) If such other mode of proceeding is prescribed by a subsequent statute (R, v. Boyall, 
2 Burr. 832), or in a substantive clause of the same statute (2 Hale, 171 ; R. v. Wright, 1 
Burr. 513 ; R. v. Jones, 2 Str. 1146 ; R. v. Harris, 4 T. R. 205 ; R. v. Buchanan, 8 Q. B. 883 ; 
R. V. Mason, n U. C. C. P. 634; R. v. Bennett. 21 U. C. C. P. 235) : 

But if such other mode of proceeding is contained in the clause that prohibits the act 
such mode must be pursued and no other {R. v. Robinson, 2 Burr. 805 ; R, v. Buck, 2 
Str. 679) and such other mode m. y, in the cases (6.) (1.) and (2.) bo pursued by the prose- 
cutor at his option.] 

There are in the statutes of Canada a number of special provisions as to wilful violations 
thereof) or of regulations made thereunder. As for instance, wilful violations by certain 
officers and servants of the Crown of regulations made under The Piiblio Works Act (R. S. 
C. c. 36, ss. 27, 28) ; or under the Act respecting the Department of Railways and Canals 
(R. S. C. 0. 37, ss. 17, 18) ; or under The Oovo-nment Railways Act ; or by officers and ser- 
vants of railway companies of regulations made under The Railway Act (51 Vict. (D). c. 29, 
ss. 294, 296) or C. S. C. c. 60, ss. 1£8, 159. In the cases mentioned the punishment is to be 
more or less severe as the act or default causes or does not cause injury to any person or 
property, or exposes or not any person or property to the risk of injury. 

As to the person having iuj custody of assessment rolls, voters' lists, i&c, not furnish- 
ing same to revising officer, see The Electoral Franchise A zt (R. S. C. C. 5, s. 40). See also 
R. S. C. c. 35, 8. 104 (wilful violations of regulations made under The Post Office Art ; R. S. 
C. c. 67, s. 20 (wilful violations of The Chinese Immigration Act) ; and R. S. C. o. 68, s. 11 
(of quarantine regulations). 

i2 



116 A DIGEST OF 



[omitting to do any act which it requir'^s to be done, and 
which concerns the public or any part c '" the public, un- 
less it appears from the statute that it ,. as the intention 
of the Legislature to provide some other penalty for such 
disobedience. 

^ Article 154. 

disobedience to lawful orders of court, &c 

^ Every one commits a misdemeanor who disobeys any 
order, warrant, or command duly made, issued, or given 
by any cou.rt, officer, or person acting in any public 
capacity and duly authorized in that behalf, unless any 
other penalty or mode of proceeding is expressly pre- 
scribed in respect of such disobedience. 

Illustrations. 

(1.) '' A refuses to assist a constable in the execution of his duty when 
lawfully called upon by the constable to do so. A commits a misde- 
meanor. 

(2.) * A refuses to pay money for the support of his bastard child which 
he has been ordered to pay by the Quarter Sessions. A commits a mis- 
demeanor.] 



1 S. D. Art. 125. 

- [5th Report, C. L. C. 43 ; Jonex' Gme, 2 Moody 171 ; R. v. Dale, Dear, 37. Draft Code, 
8.115.] Any wilful neglect or disobedience of a rule of court or order of a judge made 
under any of the following Acts respecting the liberty of the subject is by such Acts de- 
clared to be a misdemeanor, that is to say :— R. S. N. S. 3 Ser. c. 153, s. 9 ; 19 Vict. (N.B.) 
0. 42, 8. 5 ; and 20 Vict. (P.B.I.) o. 10, a. 5, 

8 \R. V. Sherlock. L. R. 1. C. C. R. 20. 

* Ji. V. Fen-all, 2 Den. 51. In this case Pollock, C.B., asked how it would be if the man 
could not pay? and whether a refusal to pay a fine is indictable ? The answer would seem 
to be that it is. Imprisonment on such an indictment would only be a roundabout way of 
doing what is commonly done in cases of fine, viz., inflicting an alternative term of im- 
prisonment. Whether a man is sentenced to be fined £100 and to bo imprisoned in default 
of payment, or to be imprisoned because he has not obeyed the order of the Court to pay 
a fine of £100, is rather a matter of form than anything else.] For special statutory pro- 
visions as to refusing to assist certain peace ofiicers see 27 Vict. (N.B.) c. 8, a, 2 ; R. S. 0. 
0. 50, a. 98 (in respect of unlawful sales of spirituous liquors in the North-AVest Territories); 
R. S. C. c. 53 8. 41 (the same in Keewatin). See also R. S. 0. c. 31, a. 91 (neglecting to aid 
officers of Inland Revenue) and R. S. C. c. 32, a. 214 (refusing to stop vessel or conveyance 
when required to do so by any officer of the customs). 



THE CRIMINAL LAW. 117 



CHAPTER XIV. 
BRIBERY AND CORRUPTION— SALE OF OFFICES. 

' Article 155. 
judicial corruption. 

' [Every one who gives or offers to any person holding 
any judicial office, and every person holding any judicial 
office who accepts, any bribe, commits a misdemeanor. 

Every gift or payment made in respect of, or in relation 
to, any business having been, being, or about to be trans- 
acted before any such person in his office is a bribe, 
whether it is given in order to influence the judicial 
officer in something to be done, or to reward him for 
something already done, and whether the thing done or 
to be done is itself proper or improper. 

^ Article 156. 

corruption of public officers. 

* Every one commits a misdemeanor who by any means 
endeavors to force, persuade, or induce any public officer, 
not being a judicial officer, to do or omit to do any act 
which the offender kLows to be a violation of such officer's 
official duty.] 

J S. D. Art. 126. 

'' [3 Inst. 144-8 ; 1 Hawk. P. C. 414-15; 5th Report, C. L. C. p. 20-1. See, too, Spedding's 
Life of Bacon, vii. 209-78. Tho crime is so rare that the definition is very imperfeot and 
more or less conjectural. See 3 Hist. Cr. Law, 250-5 ; Draft Code, s. 111.] 

3 S. D. Art. 127. 

* [6th Report, C. L. C. art. 3, So, p. 47. Many authorities are cited, and in particular the 
chapters of the 3rd Inst, and Hawkins referred to in the last note ; also Ji. v. Vaughan, 
Bnrr. 2494, see especially 2501.] As to bribery of a member of a Provincial Legislature 
see B. V. Bunting, 7 0. R. 524. 



118 A DIGEST OF 



Article 157. 

corruption in respect to contracts with the 

government. 

• Every one is guilty of a misdemeanor and liable to a 
fine not exceeding one thousand dollars and not less than 
one hundred dollars, and to imprisonment for a term not 
exceeding one year and not less than one month, and in 
default of payment of such fine, to imprisonment for a 
further term not exceeding six months, who makes any 
offer, proposal, gift, loan, promise, agreement, compensa- 
tion or consideration, directly or indirectly, to any officer 
or person in the employment of the Government of Can- 
ada, or of any Province of Canada, with intent to secure 
the influence of such officer or person to promote either 
the obtaining or the execution of any contract with such 
government, or the payment of the consideration moneys 
therefor. 

Every one in the employment of such government is 
guilty of a misdemeanor and liable to the same punish- 
ment who accepts, or agrees to accept, any such offer, 
proposal, gift, loan, promise, agreement, compensation or 
consideration. 

Every one is guilty of a misdemeanor and liable to the 
same punishment who, in the case of tenders being called 
for by or on behalf of the Government of Canada, or of 
any Province of Ctnada, for any contract, directly or in- 
directly, by himself or by the agency of any other person 
on his behalf, with int«^nt to obtain such contract, either 
for himself or for any other person, proposes or makes any 
gift, loan, offer, promise or agreement, or offers or gives 
any consideration or compensation whatsoever, to any 
person tendering for such contract, or to any officer or 
person in the employment of such government. 



> R. S. C. e. 173, ss. 20, 21. The prosecution for any offence defined in Articles 157, 158, 
must be eonimenced within two years after the commission of the offence, (s. 24.) 



THE CRIMINAL LAW. 119 

Every oue in the employment of the said government 
is guilty of a misdemeanor and liable to the same punish- 
ment who accepts or agrees to accept any such gift, loan, 
offer, promise, agreement, consideration or compensation 
whatsoever. 

Article 158. 

corruption in respect to business with the govern- 
MENT. 

^ Every one is guilty of a misdemeanor, and liable to a 
fine not exceeding two thousand dollars, and shall be in- 
capable, for the term of five years, of holding any public 
office, who, being a public officer or paid employee of the 
Government of Canada, or of any Province of Canada, re- 
ceives, directly or indirectly, any promise, offer, gift, loan, 
compensation or consideration whatsoever, either in 
money or otherwise, from any person whomsoever, for 
fraudulently assisting or favoring any individual in the 
transaction of any business whatsoever connected with 
such government, or for doing so con nary to the duties 
of his special position as an officei or employee of the 
government. 

Every one who makes any such offer is guilty of a mis- 
demeanor and liable to the same punishment. 

» 

Article 159. 
other consequences of conviction for any such 

OFFENCE. 

^ Every person convicted of any offence under the pro- 
visions of the two Articles next preceding shall be in- 
capable of contracting with or holding any contract under 
any of the said governments. 

1 R. S. C. c. 173, s. 22. 
2R.S.C. c. 173.B.23. 



120 A DIGEST OF 



AllTICLE 160. 
REVENUE OFFICERS COMMlTTINff CORRUPT ACTS. 

' Every officer, or person acting iu any office or employ- 
ment connected with the collection or management of 
the reA^enne, is guilty of a misdemeanor and liable to a 
fine of five hundred dollars and to one year's imprison- 
ment and to be dismissed from office - who — 

(a.) receives any compensation or reward for the per- 
formance of any official duty, except as by law prescribed^ 
or ; 

(b.) conspires or colludes with any other person to de- 
fraud the crown, or makes opportunity for any person to 
defraud the crown ; or 

(c.) designedly permits any violation of the law by any 
other person ; or 

(</.) wilfully makes or signs any false entry in any 
book, or wilfully makes or signs any false certificate or 
return in any case, in which it is his duty to make an 
entry, certificate or return ; or 

(e.) having knowledge or information of the violation 
of any revenue law by any person, or of fraud committed 
by any person against the crown, under any revenue law 
of Canada, fails to report iu writing, such knowledge or 
info-mation to his next superior officer ; or 

(/.) demands or accepts or attempts to collect, directly 
or indirectly as payment or gift or otherwise, any sum of 
money, or other thing of value, for the compromise, ad- 
justment or settlement of any charge or complaint for any 
violation or alleged violation of law, except as expressly 
authorized to do by law, or by the authority of the de- 
partment of which he is an officer. 

1 R. S. C. c. 29, s. 69. • " .'■' 

2 " Shall be dismissed from office." ,_ , ^;__ _. .:. 



THE CRIMINAL LAW. 121 



Article 10 1. 
corruption of revenue officers. 

' Every one who, directly or indirectly, promises, ofFers 
or gives, or caiisDs ov prociires to bo promised, ofFcied or 
given, any money, goods, right in action, bribe, present or 
reward, or any promise, contract, undertaking, obligation 
or security lor the payment or dtdivery of any money, 
goods, right in action, bribe, present or reward, or any 
other valuable thing whatever, to any officer, or any 
person acting in any oilice or employment connected 
with the collection or management of the revenue with 
intent — 

(a.) to influence his decision or action on any question 
or matter which is then pending, or may, by law, be 
brought before him in his official capacity ; or 

{b.) to influence such officer or person to commit, or aid 
or abet in committing any fraud on the revenue, or to 
connive at, collude in, or allow or permit any opportunity 
for the commission of any such fraud ; and, 

Every officer or person who in anywise accepts or re- 
ceives any such moneys, goods, right in action, bribe, 
present or reward, or any promise, contract, undertaking, 
obligation or security for the payment or delivery thereof, 
or any other valuable thing whatever, or any part of the 
same respectively, — 

Is guilty of a misdemeanor, and liable to a fine not ex- 
ceeding three times the amount so offered or accepted, and 
to imprisonment for one year. 

Every officer or person holding any office or place under 
the crown who is convicted of any such offence forfeits 
his office or place. 

Every person who is convicted of any such offence is 
for ever disqualified to hold any office of trust, honor or 
profit under the crown. 

1 B. S. C. 0. 20, s. 70. 



122 A DIGEST OF 



Article 162. 
customs officers committing corrupt acts. 

^ Every officer of the Customs, and every person em- 
ployed, with the concurrence of the Minister of Customs, 
for the prevention of smuggling, who 

(a.) makes any collusive seizure, or delivers up, or 
makes any agreement to deliver up or not to ^eize any 
vessel, boat, carriage, goods or thing liable to krfeiture 
under the Customs Act ; or 

(b.) takes or accepts a promise of any bribe, gratuity, re- 
compense or reward for the neglect or non-performance of 
his duty, — 

Is guilty of a misdemeanor, and liable io a fine of five 
hundred dollars, and to imprisonment for a term not 
exceeding two years and not less than three months, 
and becomes incapable of serving Her Majesty in any 
office whatsoever. 

Article 1G3. 

CORRUPTION OF CUSTOMS OFFICERS. 

" Every one is guilty of a misdemeanor, and liable to a 
fine of five hundred dollars, and to imprisonment for a 
term not exceeding two years, and not less than three 
months, who gives, oiFers or promises to give or procure 
to be given, any bribe, recompense or reward to, or makes 
any collusive agreement with, any such officer or person 
as aforesaid, to induce him in any way to neglect his 
duty, or to conceal or connive at any act whereby the pro- 
visions of any law relating to the customs, trade or navi- 
gation, may be evaded. 

' R. S. C. c. 32,g. 221. It will be obiorved that oflicora of the Cuatoms are Revonuo 
officers and both are persons in tlie employ .nent of the Govoriiinont of Ciinadn. It is very 
doubtful if the elaborate provisions icp)'csented l)y Articles 157-10.'! have ever been found 
more effective for the punishment of tho class of offenders against whom they arc directed 
than the common law as given in Articles HO, 156. 

2 R. S. C. 0. 32. s. 221. 



THE CRIMINAL LAW. 123 

Article 164. 
corrupt practices in municipal affair&. 

^ Every one is guilty of a misdemeanor and liable to a 
fine not exceeding one thousand dollars and not less than 
one hundred dollars, and to imprisonment for a term not 
exceeding two years and not less than one month, and in 
default of payment of such fine, to imprisonment for a 
further term not exceeding six months, who directly or 
indirectly, — 

{a.) makes any offer, proposal, gift, loan, promise or 
agreement to pay or give any money or other material 
compensation or consideration to any member of a muni- 
cipal council,- whether the same is to enure to his own 
advantage or to the advantage of any other person, for the 
purpose of inducing such member either to vote or to 
abstain from voting at any meeting of the council of 
which he is a member or at any meeting of a committee 
of such council, in favor of or against any measure, motion, 
resolution, or question submitted to such council or com- 
mittee ; or 

{h.) makes any offer, proposal, gift, loan, promise or 
agreement to pay or give any money or other material 
compensation or consideration to any member or to any 
officer of a municipal council for the purpose of inducing 
him to aid in procuring or preventing the passing of any 
vote or the granting of any contract or advantage in favor 
of any person whomsoever ; or 

{(•.) makes any offer, proposal, gift, loan, promise or 
agreement to pay or givi^ any money or other material 
compensation or consideration toauy otficer ofa municipal 
council for the purpose of inducing him to perform or 

'52 Vict. (D.) c. 42. The time within which a prosecution icy bo commenced for any 
offence defined in this Article is limited to two years ; (s. 3.) 

-The c.xpretisiun *' municipiil council " includes the municipal Boverning body of every 
county, union of counties, township, city, town, village, piirish aud municipality, having 
corporate powers in any Province of Canada. 



124 A DIGEST OF 



abstain from performing, or to aid in procuring or prevent- 
ing the performance of any official act whatsoever ; or 

(d.) being a member or officer of a municipal council, 
accepts or consents to accept any such offer, proposal, gift, 
loan, promise, agreement, compensation or consideration 
as is in this Article before mentioned ; or in consideration 
thereof, votes or abstains from voting in favor of or 
against any measure, motion, resolution or question or 
performs or abstains from performing any oIRcial act ; or 

(e.) attempts by any threat, deceit, suppression of the 
truth or other unlawful means to influence any member 
of a municipal council in giving or witholding his vote 
in favor of or against any measure, motion, resolution or 
question, or in not attending any meeting of the muni- 
cipal council of which he is a member, or of any committee 
thereof ; or 

(/.) attempts by any such means as in the next pre- 
ceding paragraph mentioned, to influence any member 
or any officer of a municipal council to aid in procuring 
or preventing the passing of any vote or the granting of 
any contract or advantage in favor of any person whom- 
soever, or to perform or abstain from performing or to aid 
in procuring or preventing the performance of any official 
act whatsoever. 

' Article 165. 

embracery. 

[■ Every one commits a misdemeanor called embracery] 
and is liable to fine and imprisonment ' [who by any means 
whatever except the production of evidence and argu- 
ment in open court attempts to influence or instruct any 
juryman, or to incline him to be more favorable to the 
one side than to the other in any judicial proceeding, 

1 S. D. Art. 128. 

« [1 Hawk. P. C. 466 ; 1 Russ. Or. 360.] R. S. C. o. 173, b. 30. /?. v. Cornellier, 29 L. C. 
J. 61). 
3 See Arts. 17 and 12. [Soo Draft Code, s. 129.] 



THE CRIMINAL LAW. 125 

[whether any verdict is given or not, and whether such 
verdict, if given, is true or false.] 

' Every juryman who wilfully and corruptly consents 
thereto is liable to the same punishment. 

-Article 166. 
definition of bribery of voters. 

^ [Every one is guilty of bribery 

(«.) Who directly or indirectly by himself or by any 
other person on his behalf, 

' in order to induce any voter to vote or refrain from 
voting at any election ; 

' or corruptly on account of such voter's having voted 
or refrained from voting at any election ; 

•' or in order to induce any person to procure or endea- 
vor to procure the return of any person at any election, 
or the vote of any voter at any election, 

(i.) ' gives, lends, or agrees to give or lend, or offers or 
promises, or promises to procure or to endeavor to pro- 
cure any money or valuable consideration to or for any 
person '' whatever ; 

(ii.) ' gives or procures, or agrees to give or procure, or 
offers or promises, or promises to procure or to endeavor 
to procure, any office, j^lace, or employment to or for any 
person whatever ; or 

{h.) "^ Who in consequence of any such gift, loan, offer, 

1 R. S. C. c. 173. s. 30. 

= S. D. Art. 129. 

^ R. S. C. c. 8, 8. 84 ; 17 & 18 Vict. o. 102, s. 2. See also R. S. C. o. 106, ss. 75, 76, as to 
elections under The Canada Tinwerancr Act, As to application of certain sections of 
R. S. C. c. 8 to elections in North-Wost Territories, see R. S. C. c. 7, s. 67. 

' U. S. C. c. 8, s. 84 («), (ft) ; 17 & 18 Vi.'t. c. 102, s. 2 (1), (2). The expression " election " 
in Articles 168, 160 and 171, means an election of a member to serve in the House of Com- 
mons of Canada. It appears that bribery at a municipal election is an indictable offence 
at common law ; Ji. v. Hopp, 15 U. C. Q. 15. 142, 143. 

■'■ R. S. C. c. 8, s. 84 (c) ; 17 & 18 Vict. c. 102, s. 2 (.J), 

" " Any person " = any voter, or to or for any pe' )n behalf of any voter, or to or for 
any other person. 

' R. S. C. 0. 8, s. 84 (6); 17 & 18 Vict. c. 102, s. 2 U.). 

' R. S. C. c. 8, g. 84 W) i 17 & 18 Vict. o. 102, a. 2 (4). 



126 A DIGEST OF 



[promise, procurement, or] agreeemeut, [procures or en- 
gag'es promises or endeavors to procure the return of any 
person in any election or the vote of any voter at any 
election ; or 

(f.) ' Who advances or pays or causes to be paid any 
money to, or to the use of any other person, with the in- 
tent that such money or any part thereof shall be expended 
in bribery] or corrupt practices [at any election, or who 
knowingly pays or causes to be paid any money to any 
person in discharge or repayment of any money wholly 
or in part expended in bribery at any election ■ ; or 

(d.) •' "Who being a voter before or during any election 
directly or indirectly by himself or by any other person 
on his behalf receives, agrees, or contracts for any money, 
gift, loan, or valuable consideration, office, place, or em- 
ployment for himself or for any other person for voting 
or agreeing to vote, or for refraining or agreeing to refrain 
from voting at any election ; or 

{e ) ' "VYho after any election directly or indirectly by 
himself or by any other person on his behalf receives any 
money or valuable consideration] for [having voted or re- 
frained from voting, or having induced any other person 
to vote or to refrain from voting. 



'a* 



•'Article 1Q1. 

' DEFINITION OF UNDUE INFLUENCE. 

" Every one commits the offence of undue influence 
(a.) Who directly or indirectly by himself or by any 
other person on his behalf makes use of or threatens to 

1 R. S. C. 0. 8, s. 84 W ; 17 <fe 18 Vict. c. 102. s. 2 (5.). 

- The actual personal expenses of any candidate, his expenses for actual professional 
services performed, and bond fide payments for the fair cost of printing and advertising, 
are held to be expenses lawfully incurred, and the payment thereof is not a violation of 
the Act ; R. S. C. o. 8, s. 81 ; 17 k 18 Vict. o. 102, s. 2. 

a R. S, C. c. 8, 8. 85 («) ; 17 & 18 Vict. c. 102, s. 3 (1). 

* R. S. C. c. 8. 8. 85 (6) ; 17 & 18 Vict. c. 102, s. 3 (2). 

« S. D. Art. 130. 
__ • R. S. C. 0. 8, 8. 87 ; 46 & 47 Vict. o. 51, s. 2. gee also R. S. C. c. 106, b. 79. ' 



THE CRIMINAL LAW. 12t 

[make use of any force, violence, or restraint, or inflicts or 
threatens to inflict by himself or by any other person any 
injury, damage, harm, or loss,] or in any manner practices 
intimidation, [upon or against any person in order to in- 
duce or compel him to vote or refrain from voting, or on 
account of his having voted or ref.ained from voting at 
any election ; or 

{b.) Who by abduction, duress, or any fraudulent dcAdce 
or contrivance impedes, prevents,] or interferes with 
[the free exercise of the franchise of any elector, or thereby 
compels, induces, or prevails upon any voter either to 
give or refrain from giving his vote at any election.] 

> Article 1G8. 

DEFINITION OF TREATING. 

- Every person is guilty of treating who corruptly, by 
himself or by or with any other person, or by any other 
ways or means on his behalf, at any time either before or 
during any election, directly or indirectly gives or pro- 
vides, or causes to be given or provided, or is accessory to 
the giving or providing, or pays wholly or in part any 
expenses incurred for, any meat, drink, refreshment or 
provision to or for any person, in order to be elected or 
for being elected, or for the purpose of corruptly influ- 
encing such person or any other person to give or refrain 
from giving his vote at such election. 

^ Article 169. 
punishment of bribery, undue influence and 

treating. 
* Every person is guilty of a misdemeanor, and shall 

' S. D. Art. 130 A. 

- R. 8. C. c. 8, s. 86; 46 & 47 Vict. c. 51, 8. 1. To give to any voter, on nomination or 
polling day, any refreshment or money or ticket to procure any refreshment on account 
of such voter having voted, or being about to vote, is an unlawful act, punishable by a flno 
of ten dollars. See also R. S. C. c. 106, ss. 77, 78. 

^ S. U. Art. 131. 

* R. S. C. c. 8, SB. 84, 85, 87. See also R. S. C. c. 106, ss. 75, 70, 79. A prosecution for a 
misdemeanor under R. S. C. c. 8 must be commenced within one year after the act com- 
mitted, unless prevented by defendant's absence (s. 117), and for a misdemeanor under 
R. S. C. c. 106 within six months (s. 90). 



128 A DIGEST OF 



also forfeit the sum of two liundred dollars with costs to 
any person who sues for the same, who commits bribery 
or undue influence at any election. 

' Every candidate who commits the offence of treating 
is liable to forfeit the sum of two hundred dollars and 
costs to any person who sues for the same. 

" Every one is guilty of a misdemeanor and liable to a 
penalty of one hundred dollars and to three months' 
imprisonment who, at any election, either i^rovides or 
furnishes drink or other relYeshment at the expense of a 
candidate, to any elector during such election, or pays 
for, procures or engages to pay for, any such drink or 
other refreshment. 

' R. S. C. c. 8, s. 80. See also R. S. C. c. 103, s. 77. 

- R. S. C. e. 8, .ss. 79, 82; see also R. S. C. c. ]08, ss. 71, 73. Offenders are also liable to 
disabilities as to voting, being elected, itc. 

With reference generally to offences against The Dominion Elect ions' Act, it will be 
observed that some are declared to be misdemeanors, and in respect of others the offender 
is liable to a pecuniary penalty. By the 106 Section it is provided that all penalties and 
forfeitures (other than fines in cases of miedeineanors) imposed by the Act shall be recov- 
erable with costs by any person who sues for the same in a court of competent jurisdic- 
tion, and if default is made in payme-it thereof the offender is liable to imprisonment for 
any term less than two years. Such ca=cs would, however, fall within the rule mentioned 
in the note to Article 153, and the offender might be proceeded against by indictment. 
By R. S. C. c. 0, ss. 09-8'), provision is made for the summary trial of persons guilty of 
corrupt practices at elections, under which any offender on conviction is liable tO three 
months' imprisonment with or without hard labor, and to a fine of two hundred dollars 
and costs, and in default of payment to a further term of three months' imprisonment 
(g. 82). 

As to imprisonment in case of misdemeanors where no special provision is made, see 
Art. IV. 

In addition to the offences mentioned in Articles 166-171, various others are created by 
the Act (R. S. C. c. 8). Of these tiie following are punishable by fines recoverable by suit 
in a court of competent jurisdiction:— Elector taking ballot paper out of polling station 
(s. 48) ; violatinji provisions as to secrecy (s. 70) ; refu-iing to deliver up offensive weapon 
to returning officer (s. 76, Art 108); selling spirituous iiciuors within polling district on 
election day (s.83) ; paying for conveyance of voters to the poll, ic, (s. 8S). By 51 Vict. 
(D.) c. 11, s. 13, furtlier provisions are made to secure secret voting, violations of which 
are punishable on summary conviction. The following offences are declared to bo misde- 
meanors ;— Carrying arms, itc.on election day (s. 78, Art. 109); carrying flags, <fec. 
(s. 80) ; wearing favors, (s. 81) ; and paying election expenses otherwise than through 
agent (s. 118). 

As to batteries committed on election day within two miles of polling place, see 8. 77 
(Art. 320); and as to stealing or iiijiiriiig election documents, see Articles 405,600. 

The Cnniulo Temfirnince Act (II. S. C. o. 108, ss. 64-8S,) contains provisions as to offences 
iv respect of elections hold under that Act similar to those enacted in the Dominion 
Elections Act, from which the former Lave been copied. 



THE CRIMINAL LAW. 129 



' Article 1*70. 

personation at elections. 

'^ Every one who, at an election under The Dominion 
Elections Act, 

{a) applies for a ballot paper in the name of some 
other person, whether such name is that of a person living 
or dead, or of a fictitious person ; or 

(6.) having voted once at any such election, applies at 
the same election for a ballot paper in his own name — 

Is guilty of personation and liable to a penalty of two 
hundred dollars and to six months' imprisonment. 

^ Every one who aids, abets, counsels or procures the 
commission by any person of the offence of personation 
is liable to the same punishment. 

* Every candidate who corruptly, by himself or by or 
with any other person on hiis behalf, compels or induces 
or endeavors to induce any person to personate any voter, 
or to take any false oath in any matter wherein an oath is 
required under the said Act, is guilty of a misdemeanor, 
and shall, in addition to any other punishment to which 
he is liable for such offence, forfeit the sum of two 
hundred dollars to any person who sues for the same. 

■' Every one who, at an election under The North- West 
Territories Representation Ad, tenders a vote in the name 
of some other person, whether such name is that of a 
person living or dead, or a fictitious person, or having 

' S. D. Art. 368 B. 

i* K, S. C. c. 8, s. 89 ; 3") & 36 Vict. c. 33, s. 24. See also R. S. C. c. 106, s. 82. The offence 
of personation, or aiding, itc, the commission of the otfence, is under the Act of the 
United Kingdom (46 &, 47 Vict. c. 51, g. 6 (2.) a felony. A person who applies for a ballot 
in the name by v.'hieh he is described on the register of voters, although that is not his 
name of origin or the name by which ho is generally known, does not commit persona- 
tion ; It. V. Fi>x,\^ Cox C. C. 166. It is not an indictable offence at common law to per- 
sonate a voter at a municipal election ; R, v. Hogg, 25 U. C. Q. B. 06. 

•■> R. S. C. c. 8, 8. 103. See also R. S. C. c. 106, s. 82. 

* R. S. C 0. 8, s. 90. See also R. S. C. c. 106, s. 83. 

» R. S. C. 0. 7, 8. 65. 

K 



130 A DIGEST OF 



voted once at any such election, tenders a vote at the 
same election, is guilty of personation, and is liable to a 
penalty of six hundred dollars, and to six months' impri- 
sonment. 

Article lYl. 

FORGERY OF BALLOT PAPERS, AND OTHER OFFENCES 
RESPECTING THE SAME. 

' Every one who, — 

(a.) forges, counterfeits, fraudently alters, defaces or 
fraudulently destroys any ballot paper or the initials of 
the deputy returning officer signed thereon ; or 

(b.) w^ithout authority supplies any ballot paper to any 
person ; or 

(c.) fraudulently puts into any ballot box any paper 
other than the ballot paper, which he is authorized by 
law to put in ; or 

(d.) fraudulently takes out of the polling place any 
ballot paper ; or 

(e.) without due authority destroys, takes, opens or 
otherwise interferes with any ballot box or packet of 
ballot papers then in use for the purposes of the elec- 
tion ; or 

(/.) attempts to commit any offence specified in this 
Article — 

Is guilty of a misdemeanor ; and, if he is a return- 
ing officer, deputy returning officer or other officer en- 
gaged at the election, is liable to a fine of one thousand 
dollars and in default of payment to imprisonment for 
any term less than two years, and if he is not any such 
officer to a fine of five hundred dollars, and in default of 
payment to six months' imprisonment.^ 

» R. S. C. c. 8, 9. 100 ; 35 & 36 Viot. c. 33, 8. 3. Seo also R. S. C. 106, s. 85. 
* With or without hard labor. 



THE CRIMINAL LAW. 1311 



^ Article 1*72. 

definition of office. 

[The word " office " in articles 1*73 and 1*74 includes 
" Every office in the gift of the crown or of any officer 
appointed by the crown, and all commissions, civil, naval 
and military, and all places or employments in any public 
department or office whatever in any part of Her 
Majesty's dominions whatever, and all deputations to any 
such office and every participation in the profits of any 
such office or deputation. 

• 

^ Article 1*73. 

SELLING offices. 

* Every one commits a misdemeanor who does any of 
the following things in respect of any office, or any ap- 
pointment to or resignation of any office, or any consent to 
any such appointment or resignation, that is to say, every 
one who directly or indirectly 

(a.) sells the same, or receives any reward or profit 
from the sale thereof, or agrees to do so ; 

{b.) purchases, or gives any reward or profit for the 
purchase thereof, or agrees or promises to do so. 

® Whoever commits either of these misdemeanors, upon 
its commission forfeits to the Queen any right which he 
may have in the office, and is disabled to hold it for life, 
and it is not lawful for the Queen to dispense him from 
such disability.] ^ 

> S. D. Art. 132. ;■-'•- -;.•. .■.■.:•■:'-; .- 

i* [5 & 6 Edw. 6, 0. 16 ; 49 Geo. 8, o. 126, s. 1.] 

3 S. D. Art. 133. 

♦ [4!) Geo. 3, o. 126, s. 3, greatly condensed.] R. v. Mercer, 17 U. C. Q. B. 602 ; R. v. 

Moodie, 20 U. C. Q. B. 389. 
H5&6 Edw. 6, c. 16, s. 1 ; 49 Geo. 3, o. 126, s. 2; Ingram's Case, 3 Inst. 154. The 5 & 6 

Edw. 6, c. 16, 8. 1, is repealed as to olFices in the Customs by 6 Geo. 4, c. 105, s. 10. It was, 

however, extended to offices in the Customs as well as to many others by 49 Geo. 3,c. 126. 

I do not quite understand the result of this. The present Customs Act, 39 & 40 Vict. 0.36, 

throws no light on the subject.] 

k2 



132 A DIGEST OF 



'Article 174. 
making interest for offices for reward. 

^ [Every one commits a misdemeanor who does any of 
the following things directly or indirectly : — 

(a.) receives or agrees to receive any reward or profit 
for any interest, request, or negotiation about any office, 
or under pretence of using any such interest, making 
any such request or being concerned in any such nego- 
tiation ; 

(b.) gives or procures to be given any profit or reward, 
or makes or procures to be made any agreement for the 
giving of any profit or reward, for any such request or 
negotiation as aforesaid ; 

(c.) solicits, recommends, or negotiates in any manner 
as to any appointment to or resignation of any office in 
expectation of any reward or profit ; 

(d.) ^ keeps any office or place for transacting or nego- 
tiating any business relating to vacancies in or the sale or 
purchase of or appointment to or resignation of offices.] 

1 S. D. Art. 134. 

2 49 Geo. 3, c. 126, 8. 4. 
» Ibid. s. 5. 



THE CRIMINAL LAW. 133 



CHAPTER XV. 

'misleading justice— perjury— false swearing^ 

s uborna tion—a d ministering extra-judicial 

oaths— false certificate as to execution. 

^Article 1^5. 
perjury defined. 

^ [Perjury is an assertion upon an oath duly administered 
in a judicial proceeding, before a competent ^ court, of 
the truth of some matter of fact, material to the question 
depending in that proceeding, which assertion the assertor 
does not believe to be true when he makes it, or on which 
he knows himself to be ignorant. 

^ In this definition, the word " oath " includes every 
affirmation which any class of persons is by law per- 
mitted to make in place of an oath. 

" The expression " duly administered " means adminis- 
tered in a form binding on his conscience, to a witness 
legally called before them by any court, judge, justice, 

' The 18th section of The Chinese Immigmtion Act (R. S. C. o. 67) prohibits the organiza- 
tion of courts composed of Chinese persons for the determination of offences committed 
by them. The offence is a misdemeanor punishable by twelve months' imprisonmenti ora 
fine of five hundred dollars, or both. 

- S. D. Art. 135. [See 3 Hist. Cr. Law, pp. 240-50. 

=* 3rd Inst. 167 ; 1 Ilawls. P. C. 429-435 ; 3 Russ. Cr. 1, &c., and see note, 5th Report, C. L. 
C. 23. Draft Code, s. lift.] False evidence given upon an e.xamination in the absence of 
the authority competent to hold such examination is not perjury ; li. v. Lloyd, L. R. 19 
Q. B. D. 213 ; IG Cox C. C. 235 ; R. v. Oibson, 7 R. L. 573. 

* 11. V. Dotu, 13 U. C. Q. B. 39S; ; It v. Row, 14 U. C. C. P. 307 ; R. v. Gagnon, 17 U. C C. 
P. 530 ; R. V. Martin, 21 L. C. J. 156 ; McAdam v. Weaver, 2 Kerr 176 ; R. v. Mcintosh, 
1 Han. 371 ; R. v. Leonard,^ L. N. 138, 211. 

^R. S. G. c. 1. 8.7(28.) [Many statutes to this effect have been passed. See in 
particular 32 & 33 Vict, c . 68, s. 4 ; 33 & 34 Vict. c. 49 ; and see statutes as to particular 
religious bodies collected in 3 Russ. Cr. 26-9. 

" See 14 k 15 Vict. c. 99, s. 16. passed to remove doubts in the question by whom an oath 
might be administered, 3 Russ. Cr. 3. As to using a form binding on the witness's 
conscience see 1 & 2 Vict. c. 105 ; Omichund v. Barker, Willes 538, 1 Sm. L. C. 455.] . 



134 A DIGEST OF 



[officer, commissioner, arbitrator, or other person, who by 
the law for the time being in force, or by consent of the 
parties, has authority to hear, receive, and examine 
evidence. 

' The fact that a person takes an oath in any particular 
form is an admission that he regards it as binding on his 
conscience. 

^ The expression "judicial proceeding " means a pro- 
ceeding which takes place in or under the authority of 
any court of justice, or which relates in any way to the 
administration of justice, or which legally ascertains any 
right or liability. 

^ A proceeding may be judicial although the person 
accused in it was brought before the court by which the 
proceeding is held by an irregular warrant. 

* The word " fact " includes the fact that the witness 
holds any opinion or belief. 

" The word " material " means of such a nature as to 
affect in any way, directly or indirectly, the probability 
of anything to be determined by the proceeding, or the 
credit of any witness, and a fact may be material although 
evidence of its existence was improperly admitted.] 

* All evidence and proof whatsoever, whether given or 
made orally, or by or in any affidavit, affirmation, declara- 
tion, examinai'on or deposition, is deemed material with 
respect to the liability of any person proceeded against 
for wilful and corrupt perjury, or for subornation of 
perjury. •• 

» ISelh V. Hoare. 3 B. &. B. 232 ; 7 Moody 36. 

*Illu8trati(-i8(2), (3),(4).] The administering of an oath by a returning officer to a 
Toter at a :mo election, is not a Judicial proceeding ; Thomas v. Piatt, 1 U. C. Q. B. 217. 
Wilful false swearing in an affidavit made in a judicial proceeding, and sworn before a 
oommiflsioner duly appointed, is perjury ; Milner v. Qilhert, 3 Kerr 617 ; and it is not 
necessary that the -Affidavit be used. The offence is complete on the false swearing ; 
Milner v. Oilbert, 1 Allen 61. 

» fli. V. Hughes, L. R. 4 Q. B. D. 614. 

* Illustration (6). 

» Illustrations (6), (7).] 

« R. S. 0. 0. ICl, B.5;R. v. Sost, 28 L. C. J. 2di : 1 M. L. R. 227 : R. v. Murphv, 9 L.N. 9S. 



THE CRIMINAL LAW. 135 



Illustrations, 

[(1.) A swears that certain goods are of a certain value. 

1 A is entirely ignorant upon the subject. A is guilty of perjury whether 
the goods are of that value or not 

The goods are not of that value, and A knows it. A has committed 
perjury. 

^ Tlie goods are of that value, but A believes that they are not. A 
has committed perjury. 

The goods are not of that value, but A believes that they are. A has 
not committed perjury. 

(2.) ^ A proceeding before a local marine board sitting under the 
Merchant Shipping Act, 1854, and having power to suspend or cancel the 
certificates of the masters and mates of ships, is a judicial proceeding. 

(3.) * An inquiry before a sheriff as to the amount of damages is a 
judicial proceeding. 

(4.) ^ An inquiry before a justice of the peace as to making a man find 
sureties for the peace is a judicial proceeding. 

(5.) * A swears that he thinka that certain words are in his hand- 
writing. The jury find that he did not think so. A commits perjury. 

(6.) ' A, a witness under cross-examination, denies an imputation 
which goes to his credit only. B is improperly permitted to contradict 
A. B swears falsely. B commits perjury on a matarial fact 

(7.) * A falsely swears that he has examined a paper, alleged to be a 
copy, with an original will, in order to make the copy admissible. The 
paper is not put in evidence, and it would not have been admissible if it 
had been tendered. A commits perjury on a material fact. 

" Article 1*16. 

subornation of perjury. 

'" Subornation of perjury is procuring a person to com- 
mit a perjury, which he actually commits inconsequence 



of such procurement.] 



> fif. V. »fau>6ei/, 6 T. R. 637. 

" Oumew CVwe, 3 Inst. lt«3. .,. 

*R.y. Tomliruon,L.R. I C.C.R. 49. 

* 1 Ilavrk. P. C. 430. 

» Ibid.J See also «. v. Walker, 21 U. C. Q. B. 34 ; R. v. Mamn, 29 U. C. Q. B. m. 

* [R. V. SchUnnger, 10 Q. B. 670, 

' H. y. Gibbon, L. & C. 109. In the later case of 7;, v. 7V»on, L. R. 1 C. C. R. 107, R. r. 
Gibbon was followed, but the facta are not so strong. See, too, R. r. MulUiny, L. & C. G93, 
» Philpott't Cats, 2 Den, C. C. 302, 309.] 

* S, D, Art. 186. 

'° [If the perjury is not committed, the crime is incitement ; see Article 60, See also 1 
Hawk. P. 0. 435. o. 27, s. 10. Draft Code, s. 119.] 



136 A DIGEST OF 



. ' Article lt*7. 

PUNISHMENT OF PERJURY AND SUBORNATION. 

^ Perjury and subornation of perjury are misdemeanors, 
and every one who commits either is liable to a fine in 
the discretion of the court and to fourteen years' im- 
prisonment.^ 

^ Article 178. 

FALSE swearing. 

•^ [Every one commits a misdemeanor who swears falsely 
before any person authorized to administer an oath upon 
a matter of piiblic concern, under such circumstances that 
the false swearing if committed in a judicial proceeding 
would have amounted to perjury. 

Illustrations. 

(1.) "A takes a false oath before a surrogate in order to obtain a 
marriage license. A commits a misdemeanor. 

(2.) ' A takes a false oath before commissioners appointed by the king 
to inquire into cases in which a royal grant was required to confirm title 
to lands. A commits a misdemeanor. 

(3. ) "A swears a false affidavit under the Bills of Sale Act (17 & 18 
Vict. c. 36). A commits a misdemeanor.] 

Article 1*79. 

FALSE statements — WILFUL OMISSIONS IN AFFIDAVITS, &0. 

® Every one is guilty of perjury who 

(a.) having taken any oath, affirmation, declaration or 

1 S. D. Art. 137. 

«R. 8.0.0.154,8.1. 

■** [The punishment at coininon law was whipping, imprisonment, fine, and pillory.] 

* &. D. Art. 138. As to forging instrumen t« admissible in evidence and tendering them 
in proof, Ac, see Art. 505. 

6 [See Cases in Illustrations. Draft Code, s. 122. 

• Chapman'n Case, 1 Den. 0. C. 432. 

' llobart, 62. This case is given by Hawliins, 1 P. C. 430, as an instance of perjury in » 
proceeding not judicial ; but thisi I think) is a misconception. 
s li. V. HodokUi, L. R. 1 C. C. R. 212.] 
« R. S. C. c. 154, 9. 2. 



THE CRIMINAL LAW. 137 

affidavit in any case in which by any Act or law in force 
in Canada, or in any Province of Canada, it is required or 
authorized that facts, matters or things be verified, or 
otherwise assured or ascertained, by or upon the oath, 
affirmation, declaration or affidavit of any person, wil- 
fully and corruptly, upon such oath, affirmation, declara- 
tion or affidavit, deposes, swears to or makes any false 
statement as to any such fact, matter or thing ; or 

{b.) knowingly, wilfully and corruptly, upon oath or 
affirmation, affirms, declares, or deposes to the truth of 
any statement for so verifying, assuring or ascertaining 
any such fact, matter or thing, or purporting so to do, or 
knowingly, wilfully and corruptly takes, makes, signs or 
subscribes any such affirmation, declaration or affidavit, 
as to any such fact, matter or thing, — such statement, 
affidavit, affirmation or declaration being untrue, in the 
whole or any part thereof ; or, 

(c.) knowingly, wilfully and corruptly omits from any 
such affidavit, affirmation or declaration, sworn or made 
under the provisions of any law, any matter which, by 
the provisions of such law, is required to be stated in 
such affidavit, affirmation or declaration. 

Article 180. 
making false affidavit out of province in which it 

IS USED. 

^ Every person who wilfully and corruptly makes any 
false affidavit, affirmation or declaration, out of the Pro- 
vince in which it is to be used, but within Canada, before 
any person authorized to take the same, for the purpose of 
being used in any Province of Canada, is guilty of per- 
jury in like manner as if such false affidavit, affirmation 
or declaration were made before a competent authority in 
the Province in which it is used or intended to be used. 

1 R. S. C. 0. 151, 8. 3 ; 18 & 19 Viot. o. 42, 8. 4. 



138 A DIGEST OF 



Article 181. ' 

administering oaths without authority. 

^ Every justice of the peace or other person who admin- 
isters, or causes or allows to be administered, or receives 
or causes, or allows to be received, any oath, affidavit or 
solemn affirmation, touching any matter or thing whereof 
such justice or other person has not jurisdiction or cogni- 
zance by some law in force at the time being, or author- 
ized or required by any such law, is guilty of a misde- 
meanor and liable to a line not exceeding fifty dollars, or 
to imprisonment Tor any torm not exceeding three months. 

^Article 182. 

^ maintenance. 

^ [Maintenance is the act of assisting the plaintiff in any 
legal proceeding in which the person giving the assist- 
ance has no valuable interest, or in which he acts from 
any improper motive. 

Champerty is maintenance in which the motive of the 
maintainor is an agreement that if the proceeding in 
which the maintenance takes place succeeds, the subject 
matter of the suit shall be divided between the plaintiff 
and the maintainor. 

A common barrator is one who habitually moves, 

' R. S. C. c. 141, a. 1 ; 5 A 6 Wm. 4, c. 62, s. 13. 
» S. D. Art. 141. See Appendix, Note III. 

* [In the earlier editions of this work I included under this head the offence of aellinsr 
pretended titles. The whole matter is so indefinite, and partalies so much more of the 
nature of a civil penalty than of a crime, that I have left it out. The law upon the sub- 
ject will be found in 32 Hen. 8, c. 9. See Jenkiw v. Jones, L. K. 9 Q. B. L>. 128, on the 
effect of 8 .& 9 Vict. o. 106 upon 32 lien. 8, c. 9, and Kennedu v. Lyell, L. R. 15 Q. U. D. 491, 
on the meaning of a " pretended title." 

♦ 1 RusB. Cr. (5th ed.) 351-60. As to barratry, 362-3. See also 1 Hawk. P. C. 451-468, 
and Note III. in Appendix. 8ee also 3 Hist. Cr. Law, 231-40. The old Statute of Conspi- 
rators, 33 Edw. 1. and many other ancient statutes (3 Edw. 1 c. 18; 13 Edw. 1 c. 49; 1 Edw. 
3, St. 2, 0. 14 : 20 Edw. 3, o. 4 ; 1 Rio. 2, o. 4 ; 7 Rio. 2, o. 15 ; 32 Hen. 8, c. 9 ; 4 Edw. 3, c. 11) 
refer to these offenoef , but do not throw much light on their nature.] 



THE CRIMINAL LAW. 139 

[excites, or maintains suits or quarrels, either at law or 
otherwise. 

Every one who commits maintenance, or champerty, 
or is a common barrator, is guilty of a misdemeanor. 

' Every one who sues any person in the name of a ficti- 
tious plaintiff, or in the name of a real person but with- 
out his authority, commits a misdemeanor, and must, 
upon conviction thereof, be imprisoned for six months. 

2 Article 183. 

conspiracy to defeat justice — dissuading witnesses 

from testifying. 

Every one commits a misdemeanor who 

(a.) •'' conspires with any other person to accuse any 
person falsely of any crime, or to do anything to obstruct, 
prevent, pervert, or defeat the course of justice ; or 

{b) * in order to obstruct the due course of justice, dis- 
suades, hinders, or prevents any person lawfully bound 
to appear and give evidence as a witness from so appear- 
ing and giving evidence or endeavors to do so ; or 

(c.) * obstructs or in any way interferes with or know- 
ingly prevents the execution of any legal process civil or 
criminal.] 

Article 184. 

signing false declaration respecting execution of 
judgment of death. 

® Every one who knowingly and wilfully signs any 

^ ri8 Eliz, c. 6, 8. 4 (redrawn and modernized).] 

« S. D. Art. 142. 

' Every one convicted of an ofTenoe against clause (a.) is liable to seven years' imprison- 
ment ; R, S. C. 0. 173, 8. 26 ; [Wright on Conspiracies, 30 ; 14 & 15 Vict. c. ICO, a. 29 ; cf. Draft 
Code, 88. 126, 7, 8. 

* 1 Hawk. P. C. 64 ; R. v. Lady Lawlev, Strange, 901 ; and see 5th Rep. C. L. C. Art. 57.] 
See also R. S. C. c. 106, s. 121, as to tampering with witnesses in any prosecution under 
The Canada Temperance Act. 

' [Cases collected in 1 Russ. Cr. 658-61.] 

• R. S. 0. c. 181, 8. 19. 



140 A DIGEST OF 



false certificate or declaration required with respect to 
the execution of judgment of death on any prisoner is 
guilty of a misdemeanor, and liable to imprisonment for 
any term less than two years. 



THE CRIMINAL LAW. 141 



CHAPTER XVI. 

escape— rescue— prison breach— misprisions— com- 
pounding offences— taking or advertising rewards 
for recovery of stolen property, 

^Article 185. \ 

voluntary permission by officers of escapes by 

prisoners. 

[Every one who knowingly, and with an intent to save 
him from trial or execution, permits any person in his 
lawful custody to regain his liberty, otherwise than in 
due course of law, commits the offence of voluntary 
escape ; and 

is guilty of high treason if the escaped prisoner was in 
his custody for and was guilty of high treason ; and^ 

becomes an accessory after the fact to the felony of 
which the escaped prisoner was guilty, if he was in his 
custody for and w is guilty of felony ; and 

is guilty of a misdemeanor if the escaped prisoner was 
in his custody for and was guilty of a misdemeanor. 

^Article 186. 

negligent permission by officers of escapes by 

prisoners. 

* Every one is guilty of the misdemeanor called negli- 

1 S. D. Art. 143. 
[2 Hawk. P. C. 192, 190, 197 ; I Russ. Or. 568. It does not appear what is the effect of 
voluntarily permitting the escape of a man lawfully chanted, but innocent in fact. Draft 
Code, 8. 138.] 

=> S. D. Art. 144. 

* [1 Hale, P. C. G02; 2 Hawk. P. C. 194 (speaks doubtfully as to the second paragraph). 
Of. Draft Code, s. 140.] 



142 • A DIGEST OF 



[gent escape who, by the neglect of any duty, or by igno- 
rance of the law, permits a person in his lawful custody 
to regain his liberty otherwise than in due course of law. 
The person escaping is deemed to have regained his 
liberty as soon as he gets out of sight of the person from 
whom he escapes, and not before. 

* Article 18*7. 

rescue defined. 

^ Rescue is the act of forcibly freeing a person from cus- 
tody against the will of those who have him in custody. 
If the person rescued is in the custody of a private 
person, the offender must have notice of the fact that the 
person rescued is in such custody. 



^ Article 188. * 

quality of offence of rescue. 

* Every one commits high treason, felony, or misde- 
meanor who rescues a prisoner imprisoned on a charge of, 
or under sentence for, high treason, felony, or misde- 
meanor respectively.] :■ ..^^, ^■. ^'-ry ■.:,... ^ 

' Article 189. 
felonious rescues — punishment. 

^ Every one who feloniously rescues any prisoner is 
liable to seven years' imprisonment, when no special 
punishment is otherwise provided by statute. 

» 8. D. Art. 145. 

a [1 Russ. Cr. 582; 2 Hawk. P. 0. 201.J 

» S. D. Art. 146. 

* [1 Hale P. C. 636 ; 1 Rusb. Cr. 583-4. Draft Code, s. 186.] 
og.D. Art. It7. 

• R. S. 0. 0. 165 s. 1 ; 1 & 2 Geo. 4. o. 88 g. 1. 



THE GRIMIiVAL LAW. 143 



' Article 190. 

rescuing murderers. 

'" [^very one commits felony and is liable] to seven 
years' imprisonment, [who by force sets at liberty, res- 
cues, or attempts to rescue, or set at liberty, any person 
out of prison, committed for or found guilty of murder, 
or rescues or attempts to rescue any person convicted of 
murder, going to execution or during execution. 

^Article 191. 
breaking prison. 

■* Every one commits felony who, being lawfully de- 
tained on a charge of, or under sentence for, treason or 
felony, breaks out of the place in which he is so detained, 
against the will of the person by whom Le is detained. 

The expression " breaks out " means an actual breaking 
of the place in which the party is confined, whether in- 
tentional or not. 

Illmlraiiwis. 

(1.) ''A, lawfully confined in prison under a charge of felony, climbs 
over the prison wall and escapes. A has not committed an oflence within 
this Article. 

(2.) ^On the top of the prison wall loose bricks are arranged so as to 
fall if disturbed. In climbing over the wall A accidentally disturbs and 



> S. D, Art. 148. 

- 25 Geo. 2 c. 37 s. 9. I havo left this provision in tiie text though it is not clear that it 
would be held to be in force in Cimada. 

The punishment in England was reduced from death to penal servitude for life by 
7Wm. 4 A 1 Vict. c.91. In the Provinces other than British Columbia and Manitoba, the 
punishment would, if the act were held to be in force, be death unless it is reduced to 
imprisonment for life by R. S. C. c. 181 s. 24 (Art. 17) or to seven years bv K S. C. c. 155 
8. 1. See Draft Code, 8. 135. ' 

■' S. D. Art. 153. 

< [2 Hawk. P. C. 183-189; 1 Russ. Cr.677-f81. There is a good deal of learning on the sub- 
ject founded on 1 Edw. 2, st. 2, " De frangentibus prisonam," but it is mostly practically 
obsolete. This statute is not mentioned in the Revised Statutes. Draft Code, s. 132. 

^ R. V. Huswell, R. & R. 458.] But it might be an oflFence within Art. 192 or 195. 



144 A DIGEST OF 



[throws down one of them. A has committed an offence within this 
Article.] 



* Article 192. 

punishment of certain escapes, rescues, &c. 

Every one who escapes from or rescues, or aids in res- 
cuing, any other person from lawful custody, or makes or 
causes any breach of prison, if such offence does not 
amount to felony, is guilty of a misdemeanor, and liable 
to imprisonment for any term less than two years. 



''Article 193. 
assisting escape of prisoners of war. 

^ [Every one commits felony and is liable] to imprison- 
ment for life (probably) who 

[{a.) assists any alien enemy of Her Majesty, being a 
prisoner of war in Her Majesty's dominions, whether 
such prisoner is confined as a prisoner of war in any 
prison or other place of confinement, or is s'lffered to be 
at large on his parole in Her Majesty's dominions or in 
any part thereof, to escape from such prison or place of 
confinement, or from Her Majesty's dominions, if at large 
on his parole ; or 

{b.) who (owing allegiance to Her Majesty) after any 
such prisoner as aforesaid has quitted the coast of any 
part of Her Majesty's dominions in such his escape, 
knowingly and wilfully upon the high seas aids or 
assists such prisoner in his escape towards any other 
dominions or place.] 

> S. D. Art. 152. 

2K. S. C. C.155S.2. 2 Hawk. P. C. 182. Draft Code ss. 133, 134. 

8 S. D. Art. 149. 

* 52 Geo. 3, o. 156, ss. 1, 2, 3. The punishment prescribed by the Act is transportation 
for life or fourteen or seven years. I have assumed that R. S. C. c. 181, s. 24 (Art. 17), 
would apply to such a ease. 



THE CRIMINAL LAW. 145 



Article 194. 

unlawfully directing or procuring discharge of 

prisoner. 

^ Every one is guilty of a misdemeanor, and liable to 
imprisonment for any term less than two years, who, 
knowingly and unlawfully, under color of any pretended 
authority, directs or procares the discharge of any 
prisoner not entitled to be so discharged. 

The person so discharged is held to have escaped. 

Article 195. 

ESCAPING, etc., from A PENITENTIARY. 

^ Every one is guilty of felony and liable to two years' 
imprisonment in case (a.), to three in case (6.), to one in 
case (c), and to five in cases {d), {e.) and {f.) ; 

{a.) who being a prisoner ordered to be detained in any 
penitentiary, escapes from the person or persons having 
the lawful custody of him, when being conveyed thereto, 
or when being conveyed from one penitentiary to another ; 

{b.) who being a prisoner in a penitentiary, breaks 
prison or escapes, or attempts to escape from the custody 
of any officer, guard or other servant of the penitentiary 
while at work, or passing to or from work, either within 
or beyond the prison walls or penitentiary limits ; 

(c.) who being a prisoner in any penitentiary, at any 
time attempts to break prison, or who forcibly breaks out 
of his cell, or makes any breach therein with intent to 
escape therefrom, whether successful or not ; 

{d) who rescues or attempts to rescue any prisoner 
while being conveyed to any penitentiary, or while im- 
prisoned therein, or while being conveyed from one peni- 

1 R. S. C. 0. 155, 8. 8. 

• R. S. C. c. 155, 8a. 3, 4, 5, 6, 7. 1 & 2 Viot, o. 82. ss. 12, 13 ; 5 <t 6 Viot. c. 29, S8. 24, 25 ; 
« 4 7 Viot. 0. 26, Bs. 22| 23 ; 28 & 29 ViOt. o. 126, :b. 37. 

L 



146 A DIGEST OF 



tentiary to another, or while passing to or from work at 
or near any penitentiary ; or 

(e.) who by supplying arms, tools or instruments of dis- 
guise, or otherwise in any manner aids any such prisoner 
in any escape or attempt at escape ; or 

(/.) who having the custody of any such prisoner, or 
being employed as a keeper, turnkey, guard or assistant, 
by the person having such custody, knowingly and 
wilfully allows such prisoner to escape. 

Article 196. 

keepers, etc., carelessly allowing prisoners 
to escape from a penitentiary. 

^ Every one is guilty of a misdemeanor, and liable to 
fine or imprisonment, or to both, in the discretion of the 
court, who, having the custody of any prisoner ordered 
to be detained in any penitentiary, or being employed as 
a keeper, turnkey, guard or assistant by the person 
having such custody, carelessly allows any such prisoner 
to escape. 

Article 197. 

escaping, etc., from a reformatory. 

^ Every one who, being sentenced to be detained in any 
reformatory prison or reformatory or industrial school, 
escapes therefrom, may, at any time before the expiration 
of his term of detention, be apprehended without war- 
rant, and brought before any justice of the peace or 
magistrate, who, on proof of his identity, must remand 
him to such prison or school, there to serve the remainder 
of his original sentence, with such additional term, not 
exceeding one year, as t9 such justice or magistrate seems 
proper. 

I R. S. C. 0. 155, 8. 7. 
2 R. S. C. c. 155, B. 9. 



THE CRIMINAL LAW. 147 



^ Every one is liable, on summary conviction before 
two justices of the peace, to a penalty not exceeding 
eighty dollars, or to imprisonment w^ith or without hard 
labor for any term not exceeding two months, who 

{a.) knowingly assists, directly or indirectly, any offen- 
der detained in a reformatory prison or reformatory or 
industrial school, to escape from such prison or school ; or 

(6.) directly or indirectly induces such an offender to 
escape from such prison or school ; or 

(c.) knowingly harbors, conceals or prevents from re- 
turning to the prison or school, or assists in harboring, 
concealing or preventing from returning to the prison or 
school, any offender who has escaped from such prison or 
school. 

Article 198. 

punishment of prisoners who escape. 

^ Every one who escapes from imprisonment must, on 
being retaken, undergo, in the prison he escaped from, 
the remainder of his term unexpired at the time of his 
escape, in addition to the punishment which is awarded 
for such escape ; and any imprisonment awarded for such 
offence may be to the penitentiary or prison from which 
the escape was made. 

^ Article 199. 

transports or persons sentenced to penal servitude 

being at large. 

* [Every one commits felony and is liable, upon con- 
viction thereof, to be kept in penal servitude for life, and 

iRS.C.c. 155,8.10. 

2R. S. C. c. 165, s. 11. 

8 S. D. Art. 155. 

* [5 Geo. 4, c. 8-t, s. 22. Punishment altered by 4 Jk 5 Will. 4, o. 67] and by 20 & 21 Vict, 
c. 3. The punishment defined in the Article is that to which the ofifender would now be 
liable if tried in England. Draft Code. s. 130. 

l2 



148 A DIGEST OF 



[to be previously imprisoned with or without hard labor 
for any term not exceeding four years, 

(a.) who having been sentenced or ordered to be trans- 
ported, or kept in penal servitude, or having agreed to 
transport himself on certain conditions, either for life or 
for any number of years] according to the provisions of the 
Act of the United Kingdom, 5 Greo. 4, c. 84, or any other 
Act therein mentioned [is afterwards at large within any 
part of Her Majesty's dominions, without some lawful 
cause, before the expiration of the term for which he was 
ordered to be transported or kept in penal servitude, or 
agreed to transport himself ; 

' (b.) who aids, abets, counsels, or procures the com- 
mission of the offence defined in clause (a).] ^^ 

■ ^ Article 200. 

misprision of treason. 

^ Every one who knows that any other person has com- 
mitted high treason, and does not within a reasonable 
time give information thereof to a judge of assize, or a 
justice of the peace, is guilty of misprision of treason, and 
must upon conviction thereof be sentenced to imprison- 
ment for life, and to forfeit to the Queen all his goods and 
the profits of his lands during his life. 

* Article 201. 
misprision of felony. 



^ Every one who knows that anTr other person has com- 
mitted felony and conceals or procures the concealment 
thereof, is guilty of misprision of felony, and upon con- 

» 4 & 6 Will. 4, 0. 67. 
« S. D. Art. 156. 

» [1 Hawkins, P. C. 60. As to punishment, ii. 630 ; 1 Hale, P. C. 371-74. See Appendix 
Note IV. Cf. Draft Code, s. 18.] 
« S. D. Art. 157. 
» [1 Hawkins, P. C. 73. See Appendix, Note IV.] 



THE CRIMINAL LAW. 149 

[viction thereof the oflFender, if a sheriff, coroner, or their 
bailiff, ' " shall have one year's imprisonment and after 
" make a grievous fine " at the discretion of the ^ court, 
and if they " have not whereof they shall have imprison- 
ment of ^ three years." 

In other cases the offender is guilty of a misdemeanor.* 

'Article 202. • '. • 

agreement not to prosecute. 

" Every one commits a misdemeanor who, in respect of 
any valuable consideration, enters into an agreement not 
to prosecute any person for felony, or to show favor to 
any person in any such prosecution. 

ifSEdw. 1, c. 9. 

- The words " at the king's pleasure," mean this ; see 1 Halo, P. C. 375. 

•■' Others read " four." See Revised Statutes.] 

■* Tlio rule that when one has suffered from a felony he cannot maintain ngainst the 
felon a civil action for the injury until ho has discharged his duty to the public by carry- 
ing on, or at least setting on foot, a criminal prosecution for the public wrong is, accord- 
ing to Bishop, founded upon the fact that his neglect to prosecute the criminal, or to dis- 
cover his offence to the magistrate, is misprision of felony, and that until he discharges 
this duty he does not come into court with "clean hands." Ihe result he saya is the 
same whether the proposition assumes the form in which he states it, or the similar form 
that it wears in most uf the English cases, namely, that the policy of the law retiuires 
this stimulant to induce men to bring felons to justice. 1 Bish. Or. L., ss. 2t)T, 274. In 
Schold V. Kav, o Allen Hi, and fAvingntone v. Mnmey, 23 U. C. Q. B. 156, nonsuits were 
directed to bo entered, the evidence showing that the defendants had committed felonies, 
and had not been proceeded against therefor. That was the course adopted in Wetlock 
V. CotuUiiitiiie, 2 H. k C. 146 : but in that case a felony was set out on the face of the 
declaration, and yet the correctness of the decision was questioned in WMh v. Abraham, 
L. R. 7 tj. B. 554,iwhere the question is discussed at considerable length. And see 
Miillawl Inn. Co. V. .S'HiiV/y. L. R. (i Q. B. D. ofil ; B>-own v. D'Ai-igdor, L. R. 10 Q. B. D. 
412; Amthlii v. Fniidllii, L. R. 17 Q. B. D. 93 ; Tufdor v. McCullnngh, 8 0. R. 309. 

In many cases the Legislature in creiiting or dctining offences has provided that any 
remedy which any person aggrieved by any such offence might otherwise have had should 
not be affcot«<l. The following are instances : — 

R. S. C. 0. 2?. 8. 72 (Arts. IGO, 161). 

R. 8. C. c. 164, 8. 14 (2) (Arts. 399, 4()0) ; s. 20 (2) (Arts. 412-414); s. 55 (2) (Art. 431); 
i. 72 (Arts. 432, 477-483) : t. 91 (3) (Art. 455) ; s. 9o (2) (Art. 460) ; s. 97 (2) (Art. 450). 

R. 8. C. 0. 168, 8. 42 (2) (Art. 599). 

R. S. C. c. 172, 8. 14 (Arts. 604-607). 

51 Vict. (D.) c. 41, s. 20 (Arts. 524.529). 

^ S. D. Art. 158. 

•[1 Hale, P. C. 619. Precedente of indictment, 2 Chit. Crim. Law, 219. It is notneces 
snry to allege that the defendant did actually desist from prosecuting ; H. v. Biirgcgi, L. 
R. 16 Q. B. D. 141.] 



180 A DIGEST OF 



^ Article 203. V"' ]' 

COMPOUNDING PETn LL A , .IONS. 

^ [Every one commits a mi-iemeanor who, having 
brought, or under color of bringing, an action against any 
person under any penal statute in order to obtain from 
him any penalty, compounds the said action without 
order or consent of the court ^ ( * whether any offence has 
in fact been committed or not).] 



^ Article 204. 

corruptly taking a reward for helping to recover 

stolen property without using diligence to 

bring offender to trial. 

" Every one is guilty of felony and liable to seven years' 
imprisonment who corruptly takes any money or reward, 
directly or indirectly, under pretence or upon account of 
helping any person to any chattel, money, valuable se- 
curity or other property whatsoever, which, by any felony 
or misdemeanor, has been stolen, taken, obtained, ex- 
torted, embezzled, converted or disposed of, as in The 
Larceny Act mentioned, unless he has used all due dili- 
gence to cause the offender to be brought to trial for the 
same. 

' S. D. Art. 150. Soo R. S. C. c. 1C6, g. 120, as to compounding offences against The 
Canada Temperance Act. 

'[18 Eliz. C.5, 88. 4, 5 (very much compresaed). The punishment waa the pillory, but 
see now 56 Geo. 3, o. 138, «. 2. See also It. v. Southerton, 6 East 126; li. v. Ooileu, Russ. & 
Ry. 84.] Garrett V. Roherti, 10 Ont. App. R. 650. The statute does not apply to summary 
proceedings before justices ; R. v. Manon, 17 U. C. C. P. 534. As to when proceedings may 
be compromised, see Kneenhaw v. Collier, SO U. C. C. P. 265. 

"In Quebec, " of the Crown." R. S. C. o- 173, s. 31. 

♦ [R. V. Bent, 2 Moody C. C. 124.1 
» S. D. Art. 351 id). 

• R. S. C. c. 164 s. 89 ; 24 & 26 Vict. c. 96 a. 101. 



THE CRIMINAL LAW. 151 



Article 205. 

unlawfully advertising a reward for return of 

stolen property. 

* Every one is liable to a penalty of two hundred and 
fifty dollars for each offence, recoverable with costs by 
any person who sues for the same in any court of compe- 
tent jurisdiction, " who 

{a) publicly advertises a reward for the return of any 
property, which has been stolen or lost, and in such ad- 
vertisement uses any words purporting that no questions 
will be asked ; 

{b) makes use of any words in any public advertise- 
ment purporting that a reward will be given or paid for 
any property which has been stolen or lost, without seiz- 
ing or making any inquiry after the person producing 
such property ; 

(c.) promises or offers in any such public advertise- 
ment to return to any pawnbroker or other person who 
advanced money by way of loan on, or has bought, any 
property stolen or lost, the money so advanced or paid, 
or any other sum of money for the return of such pro- 
perty ; or 

{d.) prints or publishes any such advertisement. 

' R. S. C. c. 164 8. 90 ; 24 & 25 Vict. c. 96 s. 102. 

'^ No action to recover any 8uch penalty fhall be brought atrainst the printer or pub- 
lisher of a newspaper, defined as a newspaper for the purposes of the Acta, for the time 
being in force, relating to the carriage of newspapers by post, except within six months 
after the cause of action arises ; R. S. C. c. IW s. 90 ; 33 & 34 Viot. c. 05 ss. 2, 3. 



152 A DIGEST OF 



PART IV. 



ACTS INJURIOUS TO THE PUBLIC IN GENERAL. 



CHAP. X VII.— Undefined Misde- 
meanors. 

CHAP. XVIII.— Offences against 
Eeligion. 

CHAP. XIX.— Offences against 

MoEALITY. 



CHAP, XX.— Common Nuisances — 
Disorderly Houses — Gaming — 
Lotteries. 

CHAP. XXI.— Vagrancy— Loiter- 
ing NEAR Ships. 



CHAPTER XVII. 

undefined misdemeanors. 

^ Article 206. 

acts involving public mischief. 

' [Acts deemed to be injurious to the public have in 
some instances been held to be misdemeanors, because it 
appeared to the court before which they were tried that 
there was an analogy between such acts and other acts 

1 S. D. Art. 160. 

= [See 3 Hist. Cr. Law, 351-60, and 2 Hist. Cr. Law, 197-9 ; see the whole of chapter i. of 
Sir W. Eric's work on Trade Unions, pp. 1-51, particularly pp. 48-53 ; also his account of 
Ji. V. Rowlandu and U. v. -Outfield, Ibid. 81-7. Wright oii the Laws of Conspiracy should 
be studied, and contrasted with this. See also my account of the law of conspiracy in 
Roscoe's Criminal Evidence (8th ed.), pp. 409-414. As to offences relating to the adminis- 
tration of justice, see 5th Rep. C. L. C. paimiiii, hut particularly p. 29, Ac, p. 50, &c., and 
JL V. Opie, 1 Saund. 301 ; J{. v. Itiiiff, 8 T. R. 585, and other cases there cited. As to 
puhWcoffieors, li.v. Bembriilge, '22 St. Ir.l. After quoting the judgment of Willcs, J. 
(the colleague of Ijord Mansfield), in Millar v. 'Ihylor (4 Burr. 2312), to the effect that 
"justice, moral titnoss, and |)ubliu conveniencci when applied to a new subject, make 
common law without precedent," Pollock, C. B., said, " I entirely agree with the spirit 
of this passage so far as it rcKiirds the repressing what is a public evil and preventing 
what would become a public mischief ; but I think there is a wide difference between 
protecting the community against a new source of danger and creating a new right. I 
think the common law is quite competent to pronounce anything to be illegal which is 
manifestly against the public good ; but I think the common law cannot create new 
rights," &c. Ucffcnm v. Booiey, 4 H. L. C. 936). As to cheats affecting the public, see 2 
East, P. C. 818-822.] 



THE CRIMINAL LAW. 158 

[which had been held to be misdemeanors, although such 
first mentioned acts were not forbidden by any express 
law, and although no precedent exactly applied to them. 

This has been done especially in the case of agreements 
between more persons than one to carry out purposes 
which the judges regarded as injurious to the public, in 
which case such acts have been held to amount to the 
offence of conspiracy ; 

or when they have been done by a public officer in 
relation to his ofiicial duty ; 

or when they tended in any way to pervert the 
administration of justice, or to disturb the public peace ; 

or when the proceeding has been by parliamentary 
impeachment.] 



154 ■ A DIGEST OF 



CHAPTER XVIII. 

' OFFENCES AGAINST RELIGION. 

^ Article 207. 
blasphemy defined — alternative definitions. 

^ [Ever? publication is said to be blasphemous whicli 
contains 

Matter relating to G-od, (a.) A denial of the truth 

Jesus Christ, the Bible, or of Christianity in general, 

the Book of Common Prayer, or of the existence of God, 

intended to wound the feel- whether the terms of such 

ings of mankind, or to ex- publication are decent or 

cite contempt and hatred otherwise ; 

against the church by law (b.) Any contemptuous 

established, or to promote reviling or ludicrous matter 

immorality. relating to God, Jesus 

Publications intended in Christ, or the Bible, what- 
good faith to propagate ever may be the occasion 
opinions on religious sub- of the publication thereof, 
jects, which the person who and whether the matter 
publishes them regards as published is, or is not, in- 
true, are not blasphemous tended in good faith as an 
(within the meaning of this argument against any doc- 
definition) merely because trine or opinion, unless the 
their publication is likely publication is made under 
to wound the feelings of circumstances constituting 
those who believe such a lawful excuse, 
opinions to be false, or be- 
cause their general adop- 
tion might tend by lawful 
means to alterations in the 
constitution of the church 
by law established. 

1 [See 2 Hist. Cr.Law, oh. xxv. 398-497, and Draft Code, Part XIL] 

i^S. D.Art.161. 

" [There is authority for each of those views, as may be seen from a oolleotion of all the] 



THE CEIMINAL LAW. 155 

[Every one who publishes any blasphemous document 
is guilty of the misdemeanor of publishing a blasphemous 
libel. 

Every one who speaks blasphemous words is guilty of 
the misdemeanor of blasphemy. 

^Article 208. 

denying truth of christianity, &c. ' 

Every one commits a misdemeanor and upon convic- 
tion thereof is liable to the punishments hereinafter 
mentioned, who having been educated in, or at any time 
having made profession of, the Christian religion within 
this realm, by writing, printing, teaching, or advised 



[oases on the subject in Folkard's Edition of Starkie on Libel, pp. 693-603. Most of the 
oases are old, and I do not think that, in fact, any one has been convicted of blasphemy 
in modern times for a mere decent expression of disbelief in Christitmity. Mr. Starkie 
many years ago wrote, "A wilful intention to pervert, insult, and mislead others by 
means of contumelious abuse applied to suored subjects, or by wilful misrepresents tions 
and artful sophistry calculated to mislead the ignorant and unwary, is the criterion and 
test of guilt." This is the language of a man who means, but is reluctant to say plainly 
"You may deny Christianity to be true, but you must do it in a decent way, and with 
regard to the feelings of others." Lord Coleridge allows me to say that the left hand 
side of the page correctly states the law laid down in the last trial which took place for 
blasphemy, J{. v. Pooky, tried at the Bodmin Summer Assizes, in 1857, before Coleridge, 
J. Lord Coleridge was counsel in that case. For the reasons given in the chapter on 
offences against religion in my History of the Criminal Law, Vol. II, p. 474, I am now 
unable to agree with the milder view of the law. See Draft Code, s. 141. In 1883, shortly 
after the publication of the last edition of this work, a man named Foote was tried for 
blasphemous libel before Lord Coleridge. He directed the jury according to the doctrine 
stated in the left hand column. His summing up was published by Stevens and Sons in 
1883. I wrote an article on the subject maintaining my own view in the Fortnightly Re- 
vieio for March, 1884, and Mr. Aspland afterwards published an able pamphlet on the 
other side of the question. It did not convince me. It has been often suggested, and 
would, I think, be highly desirable, that the question should be settled by Parliament.] 

' S. D. Art. 103. 

- 9 i 10 Wm. 3 c. 35. I have omitted Article 162 respecting heresies, such offences being 
cognizable by a competent ecclesiastical court and the ecclesiastical law of England not 
having any force in Canada ; In re Lord Biahop of Natal 3 Moo.P.C.C. N. S. 115. I have, 
however, retained in the text Articles 208, 2 9, 210 and 211 as they are founded on statutes 
of a date sufficiently oarly to be in force in Canada, and us the offences are punishable on 
indictment before any court of competent criminal jurisdiction, though it is doubtful how 
far, if at ail, the courts of Canada would hold such statutes to ba applicable to, and in 
force in, Canada. See 2 Bishop Cr. Law s. 76 Note (5). 



166 A DIGEST OF 



[speaking] ' denies any one of the persons in the Holy 
Trinity to be God, or asserts or maintains that there are 
more Gods than one, or [denies the Christian religion to 
be true, or the holy scriptures of the Old and New Testa- 
ment to be of Divine authority. 

For the first offence the offender must be adjudged in- 
capable and disabled in law, to all intents and purposes 
whatsoever, to have or enjoy any ofl&ce or employment, 
ecclesiastical, civil or military, or any part in them, or 
any profit or advantage appertaining to them, and if at 
the time of his conviction the person convicted enjoys or 
possesses any office, place, or employment, such office, 
place, or employment becomes void. 

Upon a second conviction for all or any of the said 
crimes the offender is from thenceforth disabled to sue, 
prosecute, plead, or use any action or information in any 
court of law or equity, or to be guardian of any child, or 
executor or administrator of any person, or capable of any 
legacy or deed of gift, or to bear any office, civil or mili- 
tary, or benefice ecclesiastical, for ever within the realm, 
and must also suffer imprisonment for the space of three 
years from the time of such conviction. 

Any person convicted of any of the aforesaid crimes for 
the first time shall be discharged from all penalties and 
disabilities incurred by such conviction, upon his acknow- 
ledgment or renunciation of such offence or erroneous 
opinions in the same court where he was convicted within 
four months after his conviction. 

''Article 209. 

DEPRAVING THE LORD's SUPPER. 

^ Every one commits a misdemeanor who depraves, 

' 9 i& 10 Wm. 3 0. 35 contains the provision not included in the brackets. It was repealed 
by 53 Geo. 3 o. 160. Where the offence is committed by words spoken there can be no 
conviction unless an information is made before a justice within fourdays and the offender 
is prosecuted within three months. 

■■' S. D. Art. 164. 

^ [1 £dw. G, c. 1, 8. 1, applied to the present Eook of Common Prayer by 14 Car. 2, c. 4,] 



THE CRIMINAL LAW. 157 

[despises, or contemns the sacrament of the supper and 
table of the Lord, in contempt thereof by any contempt- 
uous words, or by any words of depraving, despising, or 
reviling, or by advisedly in any other wise contemning, 
despising or reviling the said sacrament. 

^ * Article 210. . <. 

depraving the book of common prayer. ; 

^ Every one commits a misdemeanor and is liable upon 
conviction thereof to the punishments hereinafter men- 
tioned, who does any of the following things : that is to 
say, 

(a.) who, in any interlude, play, song, rhymes, or other 
open words, declares or speaks anything in derogation, 
depraving, or despising of the Book of Common Prayer, 
or of anything therein contained, or any part thereof ; or 

{b.) who by open fact, deed, or open threatenings, 
compels, causes, or otherwise procures or maintains any 
parson, vicar, or other minister, in any cathedral or parish 
church or chapel, or in any other place, to sing or say 
any common or open prayer, or to minister any sacra- 
ment otherwise or in any other manner or form than is 
mentioned in the said book ; or 

(c.) who by any of the said means unlawfully inter- 
rupts and lets any parson, vicar, or other minister in any 
cathedral or parish church, or chapel, in singing or say- 



[s. 20. I have retained these and the following provisions because, though they are prac- 
tically obsolete, they relate to acts which might still be done. But I have not thought it 
worth while to encumber the book with the statutes of praemunire, which, with hardly an 
exception, are only historical monuments of bygone political and religious conflicts, im- 
posing penalties o.. acts which it is barely conceivable that any one should do in the pre- 
sent state of society. The subject is treated fully in the 7th Report of the Criminal Law 
CommiFsioners, pp. 37-45. The offences are apper.iing to Rome from any of the Queen's 
Courts (24 Hen. 8,c. 12); asserting that Parliament has a legislative authority without 
the Crown (3 Car. 2, c. 1) ; and some others.] 

> S. D. Art. 165. 

^ [1 Eliz. 0. 2, 8. 3, applied to the present Book of Common Prajer by 14 Car. 2, o. 4, 
B.20.] 



158 A DIGEST OF 



[ing common or open prayer, or ministering the sacra- 
ments, or any of thom, in the manner mentioned in the 
said book. • . 

For the first offence the offender must be fined one 
hundred marks, and in default of payment within six 
weeks after his conviction must be imprisoned for six 
months. 

For the second offence the offender must be fined four 
hundred marks, and in default of payment as aforesaid 
must be imprisoned for twelve months. 

For the third offence the offender must forfeit to the 
Queen all his goods and chattels and be imprisoned for 

life. •;■■;.; -"■,:':,' ■;:;;/■.:'.■;,,;■:;.- ^■;:;> ;--v:, v ;;: 

'AUTICLE 211. 

CLERGYMEN REFUSING TO USE THE BOOK OF COMMON 

PRAYER. ■-■■■";.,"■-.■.. 

- [Every one commits a misdemeanor, and is liable upon 
conviction thereof to the punishments hereinafter men- 
tioned, who, being a parson, vicar, or other minister 
whatsoever, that ought or should sing or say common 
prayer according to the Book of Common Prayer, 

(a.) refuses to use the said common prayer, or to min- 
ister the sacrament, in such cathedral or parish church, 
or other place, as he should use or minister the same ; 

(b.) uses, wilfully and obstinately standing in the 
same, any other rite, ceremony, order, or form of mass, 
openly or privily, or matins, evensong, administration of 
the sacrament, or other ^ open prayer than is mentioned 
and set forth in the said book ; 

(c.) preaches, declares, or speaks anything in deroga- 

1 S. D. Art. 166. 

a [2 & 3 Edw. 6, 0. 1 ; 14 Car. 2, c. 4, t. 20, and see 1 Eliz. c. 2, 8, 2, which slightly varies 
the penalty on one point. 

' By " open prayer is meant that prayer which is for others to come unto or hear, either 
in common churches or private ohapels, or orutories, commonly called the Service of the 
Church."] 



THE CRIMINAL LAW. 159 

[tion or depraving of the said book, or anything therein 
contained, or of any part thereof. 

For the first offence the offender must forfeit to the 
Queen one year's profit of such of his benefices as Her 
Majesty appoints, and be imprisoned for six months, 
whether he has any benefice or not. 

For the second offence the offender must be deprived 
ipso facto of all his spiritual promotions, and be impris- 
oned for a year, and if he has no promotion he must be 
imprisoned for life. 

For the third offence the offender must be imprisoned 
for life.] 

^ Article 212. 
disturbing public worship. 

"^ Every one is guilty of a misdemeanor and liable to 
imprisonment for any term less than two years who, 

(a.) by threats or force, unlawfully obstructs or pre- 
vents, or endeavors to obstruct or prevent, any clergyman 
or other minister in or from celebrating divine service, or 
otherwise ofiiciating in any church, chapel, meeting-house, 
school-house or other place used for divine worship, or in 
or from the performance of his duty in the lawful burial 
of the dead, in any church-yard or other burial place ; or 

{b.) strikes or offers any violence to, or upon any civil 
process, or under the pretence of executing any civil pro- 
cess, arrests any clergyman or other minister who is en- 
gaged in or, to the knowledge of the offender, is about to 
engage in, any of the rites or duties in this article men- 
tioned, or who, to the knowledge of the offender, is going 
to perform the same, or returning from the performance 
thereof. 

^ Every one is guilty of a misdemeanor and liable, on 

1 S. D. Art. 167. 

^ R. S. C. 0. 156 i 52 Geo. 3. o. ISA, s. 12 ; 9 & 10 Viof. o. 59, s. 4 ; 23 & 24 Viot. c. 32, s. 2 ; 24 & 25 
Vict. 0. 100, s. 36. See Reid v. Ingli», 12 U. C, C. P. 191 as to 1 Will. & M. o. 18, s. 16, 



160 A DIGEST OF 



summary conviction, to a penalty not exceeding twenty 
dollars and costs, and, in default of payment, to imprison- 
ment for a terra not exceeding one month, who wilfully 
disturbs, interrupts or disquiets any assemblage of per- 
sons met for religious worship, or for any moral, social or 
benevolent purpose, by profane discourse, by rude or in- 
decent behavior, or by making a noise, either within the 
place of such meeting or so near it as to disturb the order 
or solemnity of the meeting. 



against disturbers of religious worship being in force in O'ltnrio. Draft Code, s. 143, A 
person may be convicted under 23 & 21 Vict. c. 32, s. 2, of violent behavior in a churoh, 
although such behavior is an assertion of a bond fide claim of right ; Aaher v. Calcraft, 
L. R. 8 Q. B. D. c. 007. 

In the draft of the Revised Statutes of Canada, chapter 150, respecting offences against 
religion, was included a provision, founded on the statutes hereinafter referred to, against 
the desecration of the Lord's Day by shooting, gaming, sporting, frequenting tippling 
houses, or by servile labor (works of necessity and mercy excepted), but it was struck out 
by the Joint Committee of the two Houses of Parliament to which the draft wa<i referred. 
Apart from the question as to how far 29 Car. 2, c. 7, may bo in force in any Province 
there was, in each Province before it became a part of Canada, legislation on 
the subject. See C. S. U. C. c. 104; C. S. L. C. c. 23; R. S. N. B. c. 144, s. 2 ; R. S. N. S. 
3rd Ser. o. 159, s. 2; 20 Geo. 3 (P. B. I.), 3rd Sess. c. 3 ; 24 Vict. (P. E. I.) c. 7, s. 10 ; 31 
Vict. (P. E. I.) c. 14 ; R. S. B. C. (1871) No. 46. The legislature of Ontario has re-enacted 
0. S. U. C. c. 101, in the view, probably, that its provisions are of the character of police 
regulations affecting public morals. The English statutes on the subject will be found in 
4 Steph. Comm. (9th ed. pp. 210-242. See Hespeler v. Shaw, 16 U. C. Q. B. 104, as to hauling 
hay. As to who are travellers within the exception contained in 0. S. U. C. c. 104, s. 1, see 
R. V. Tinning,W. U. C. Q. B. 636 and R. v Daggett, 1 0. R. 537. A druggist who' sells 
lozenges or Sunday is assumed to sell them as a medicine ; R. v. Howarth, 33 U. C. Q. B . 
537. A person in the public service of Hor Majesty is not within R. S. 0. c. 189 (C. S. U. 0. 
0. 104) in respect of work done by him as such servant on Sunday ; R. v. Berriman 4 0. R. 
282. See Art. 242 as to opening places of public entertainment and amusement on the 
Lord's Day. 

it. S. N. S. 3rd Ser. c. 159 contains a provision against loosing or injuring horses in the 
vicinity of meetings convened for religious or moral purposes (s. 4). 



THE CRIMINAL LAW. 161 



CHAPTER XIX. 
» OFFENCES AGAINST MORALITY. 

^^ -Article 213. 

SODOMY. 

^ [Every one commits the felony called sodomy, and is 
liable] to imprisonment for life [who 

(a.) carnally knows any animal ; or, 

{b.) being a male, carnally knows any man or any 
woman (per anum). 

Any person above the age of fourteen years who per- 
mits himself or herself to be so carnally known as afore- 
said is a principal in the first degree in the said felony.] 

* Article 214. 

attempt to commit sodomy. 

^ Every one who attempts to commit sodomy is guilty 
of a misdemeanor, and is liable to ten years' imprison- 
ment. 

•^ Article 215. 

INCEST. 

' Every one who in Nova Scotia, New Brunswick or 

' [As to rape and other offences of the same kind, see Chap. XXVIII. post, p. 248.] 

" S. D. Art. 168. 

= R. S. C. c. 157, 8. 1 : [24 & 25 Viot. c. 100, s. 61 ; see cases in 1 Russ. Cr. (5th ed ) 879-82. 
See 2 Hist. Cr. Law, 429-30. As to carnal knowledge see Article 322. Draft Code, 
8. 144.] 

nS.D. Art.169. 

^ R. S. C. c. 157, 8. 2 ; 24 & 25 Viot. o. 100, s. 62. Draft Code, s. 145. As to assaults with 
intent to commit sodomy and indecent assaults on male persona see Art. 312. 

"S. D.Art.170. 

' R. S. N. S. (3rd S.) o. 160, s. 2 ; R. S. N. B. o. 145. s. 2 ; 24 Vict. (P.E.T.) c. 27,3.'3. The 
following is article 170 of Stephens' Digest, and the note thereto. 

H 



162 A DIGEST OF 



Prince Edward Island commits incest is guilty of a mis- 
demeanor and liable in Nova Scotia to two years' im- 
prisonment, in New Brunswick to fourteen, and in Prince 
Edward Island to twenty-one years' imprisonment. 

^ Aeticle 216. 

adulteey. 

^ Every one who, in New Brunswick, commits adultery 
is guilty of a misdemeanor and liable to a fine of four 
hundred dollars or to two years' imprisonment. 

' Aeticle 217. 

PUBLIC indecencies. 

^ [Every one commits a misdemeanor who does any 
grossly indecent act in any open and public place in the 



Article 170. 
eoclgsiastical cknsukks for immoralitv. 

" Every person who comiuits incest, adultery, fornication, or any other deadly sin (not 
" punishable at common law), is liable upon conviction thereof in an Ecclesiastical 
" Court to be directed to do penance, and to be excommunicated, and to be imprisoned 
" for such term not exceeding six months as the Court pronouncing the sentence of ex- 
" communication may direct." 

" 13 Edw. 1, Stat. 4 c. 1 ; 53 Geo. 3, c. 127, ss. 1-3 ; and see Phillimore's Eccl. Law, 1081, 
" 1442 : also Phillimorc v. Muclion, 1 P. D. 481 : Co. Litt.98 b. Incest, though not raen- 
" tioned in the ."Statute " Circumsptctd agalis," is the only offence which in these days 
" is ever prosecuted under the law here stated. Such a prosecution occurred within the 
" last few years in the Bishop of Chichester's Court. See 2 Hist. Cr. Law, 396-420." 

The offences are not, however, punishable in any part of Canada except as indicated in 
the text, there being no competent Ecclesiastical Court, and the ecclesiaaticiillaw of 
England not being in force here. In re Lurd liuihop of Natal, 3 Moo. P. C C. N. S. 115. 

» S. D. Art. 170. 

- R. S. N. li. c. 145, s. 3. A married man may be convicted of adultery though the 
offence is committed with an unmarried woman ; R, v. Kgre, 1 P. A B. 189. On an indict- 
ment against A for adultery v.ith B, a woman married in a foreign state, A cannot be 
convicted unless it bo proved that B was lawfully married according to the law of the 
place where the marriage was solemnized ; R. v. Ellix, 1!2 N. B. R. 410. 

•' S. D. Art. 171. 

* [I Hawk. P. C. 358. The acts referred to are principally acts of open indecency, but 
an act soandalouiiy profligate, though not in this sense openly indecent, might in some 
ca«e8 be a misdemeanor, as, e.g., selling a wife. See ji^r Lord Mansfield in R. v. Delaval, 
3 Burr. 143S.] R. v. Letamew, 9 L. N. 386. See Art. 250 (e). Draft Code, s. 146. 



THE CRIMINAL LAW. 163 

[presence of more persons than ^ one ; but it is uncertain 
whether such conduct in a public place amounts to a 
misdemeanor if it is doue when no one is present, or in 
the presence of one person only. 

^ A place is public within the meaning of this Article 
if it is so situated that what passes there can be seen by 
any considerable number of persons if they happen to 
look. 

Illustrations. 

The following are instances of public places : 

^ The ineide of an omnibus ; 

* The roof of a house visible from the back windows of several houses ; 

■'' The inside of a urinal open to the public, and by the side of a foot- 
path in Hyde Park ; 

^ The inside of a booth on Epsom racecourse, which the public were 
invited to enter ; 

' A place out of sight of the public footway where people had no legal 
right to go, but did habitually go without interference. 

* Aeticle 218. 

OBSCENE PUBLICATIONS. 

Every one commits a misdemeanor who, without 
justification, 

(a.) publicly sells, or exposes for public sale or to 
public view, any obscene book, print, picture, or other 
indecent exhibition ; " or any publication recommending 

' [Elliot's Case, L. & C. 103.] In R. v. f^emneiir, Rarasay, J. expressed the opinion that 
an exposure of a grossly indeoont character to one woman or child would bo a. misde- 
meanor. 

" Webb'H Cane, 1 Den. *« : Holmes's Case, Dears. 207 ; li. v. Orchard, 3 Cox, C. C. 248 1 
E. V. Rouverard, stated by Parke, B., in R. v. Wehh, 1 Den. 844. 

•' R. V. Holmes, Dears. 207. 

* Thallman's Case, L. & C. 326. 

^' R. V. Harris, L. R. 1 C. C. II. 282. 

» R. V. Saunders, L. R. 1 Q. B. D. 18. 

' R. V. Wellard, L. R. 14 Q. B. D. 63.] 

' S. D. Art. 172. See Appendix Note V. 

" [Appendix Note V ; Strange, 790; and gee 20 & 21 Viot. o. 83, b. 1 ; 14&15Viok. 
0. 100, 8. 20 ; Starkie (by Folkard). 003-12. Draft Code, s. 147. 

" These words are added in reference to the case of R. v. Bradlauofi,tT\oA before Cook- 
burn, C. J.I 18 June, 1877. I have not seen any report of the trial itself. Proceedings in] 

m2 



164 A DIGEST OF 



[sexual immorality, even if the recommendation is made 
in good faith and for what the publisher considers to be 
the public good. 

(b.) publicly exhibits any disgusting object. 

(Submitted.) — A person is justified in exhibiting dis- 
gusting objects, or publishing obscene books, papers, 
writings, prints, pictures, drawings, or other representa- 
tions, if their exhibition or publication is for the public 
good, as being necessary or advantageous to religion or 
morality, to the administration of justice, the pursuit of 
science, literature, or art, or other objects of general 
interest ; but the justification ceases if the publication is 
made in such a manner, to such an extent, or under such 
circumstances, as to exceed what the public good requires 
in regard to the particular matter published. 

Illustrations. 

(1.) ' A exhibits for money, to all comers, an unnatural and monstrous 
birth. A commits a misdemeanor. 

B exhibits a similar object to students of medicine only. B does not 
commit a misdemeanor. 

(2.) '^ A, a bookseller, publishes the work of a casuist, which contains 
amongst other things obscene matter. The work is published in Latin, 
and appears from the circumstances of its publication to be intended for 
ftond^df students of casuistry only. A has not committed a misdemeanor. 

B extracts the obscene matter from the work so published, translates it 
into English, and sells it as a pamphlet about the streets for the purpose 
of throwing odium upon casuists. B has committed a misdemeanor.] 



terror on the ground that the indictment was defective were taken in 1878 and are reported 
in L. R. 3 Q. IJ. D. 607. The jury found that the work prosecuted called the " Fruits of 
Philosophy," was published in good faith for the publio good, and that it recommended 
immoral practices. It appr ;rcd in evidence that it wa.« not obroene in the sense of 
being calculated or intended to excite passion. 

" [Harnng v. Walroni, 1 Russ. Or. 43fi. 

" The second paragraph of this illustration ii based upon R. v. Hicldin, L. R. 3 Q. B. 
360 ; and see Steele v. Brannan, L. R. 7 C. P. 261. The first part is merely my suggestion 
as to what ought to be held to be the law if the question should arise, but the point can- 
not be called clear. Keb*'ing, J., referred in passing to the question in Steele v. Brannan, 
L. R. 7 C. P. 269, 270, but ext^resscd no opinion upon it. I confine this article to obscenity 
because I have found no autho'ity for the proposition that the publication of a work 
immoral in the wider sense of the word is an ::.ffenoe. A man mir.ht with perfect decency 
of exprcsiiion, and in complete good faith, maintain doctrines Of to marriage, the relation] 



THE CRIMINAL LAW. 166 

Article 219. 
posting immoral books, etc. 

^ Every one is guilty of a misdemeanor who posts for 
transmission or delivery by or through the post, 

{a.) any obscene or immoral book, pamphlet, picture, 
print, engraving, lithograph, photograph or other publi- 
cation, matter or thing of an indecent, immoral, seditious, 
disloyal, scurrilous or libellous character ; or 

(b.) any letter upon the outside or envelope of which, 
or any post card or post band or wrapper upon which, 
there are words, devices, matters or things of the char- 
acter aforesaid ; or 

(c.) any letter or circular concerning an illegal lottery, 
so-called gift concert or other similar enterprise, offering 
prizes, or concerning schemes devised and intended to 
deceive and defraud the public for the purpose of obtain- 
ing money under false pretences. 

''Article 220. 

seduction of girls under sixteen — carnally 
knowing idiots. 
^ Every one is guilty of a misdemeanor and liable to 
two years' imprisonment who, 



[of the sexes, the obligation of truthfulness, the nature and limits of the rights of pro- 
perty, ifec, which would he regarded as highly immoral by most people, and yet (I think) 
commit no crime. Obscenity and immorality in this wide sense are entirely distinct from 
each other. The languiigo used in reference to some of tiie ciises might throw doubt on 
this, but I do not think any instance can be given of tlie punishment of a decent and honA 
ftiU' expression of opinions commonly regarded as immoral. I leave this note unaltoredi 
but sii.ce it was written the case cited above of li. v. Bmdlduiili may be considered to 
have gone some way towards establishing a different pr''ioiple, and to have iavostod juries 
to B certain extent with the powers of e.r pont facto censors of the press so far as such 
publications on the relation of the sexes are concerned. I think that juries ought to 
exercise such a power with the greatest caution, when a man writes in good faith on a 
subject of great interest and open to much ditferenco of opinion, and when no indecency 
of language is used, except suoh as is necessary to make the matter treated of Intel- 
ligible.j 

' R. S. C. 0. 35, 8. 103. 

-S. D. Art. 173. 

■'R. S. C. c. 157, s. ;i; 50 <fc 51 Viol. (D.) o. 48, s. 1. The prosecution for any otfenoe 
defined in Articles 220-222 must be commenced within one year from the commission, 
thereof ; s. (3). 



166 A DIGEST OF 



(a.) seduces and has illicit connection with any girl of 
previously chaste character, or who attempts to have illi- 
cit connection with any girl of previously chaste char- 
acter, being in either case of or above the age of twelve 
years and under the age of sixteen years ; or 

{b.) unlawfully and carnally knows, or attempts to 
have unlawful carnal knowledge of, any female idiot or 
imbecile or insane woman or girl, under circumstances 
which do not amount to rape, but which prove that the 
offender knew at the time of the offenc that the woman 
or girl was an idiot or imbecile or insane. 

Article 221. 

seduction under promise of marriage. 

' Every one, above the age of twenty-one years, is guilty 
of a misdemeanor and liable to two years' imprisonment, 
who, under promise of marriage, seduces and has illicit 
connection with any unmarried female of previously 
chaste character and under twenty-one years of age. 

^Article 222. 

householders permitting defilement of girls 
on their premises. 

'Every one who, being the owner and occupier of any 
premises, or having, or acting, or assisting in the man- 
agement or control thereof, induces, or knowingly suffers, 
any girl of such age as in this Article mentioned to resort 
to or be in or upon such premises for the purpose of 
being unlawfully and carnally known by any man, 
whether such carnal knowledge is intended to be with 
any particular man or generally,^ — 

» R. S. C. c. 157, 8. 4 ; 50 & 61 Vict. (D.) o. 48, 8. 2. , 

» S. D. Art. 173 A. 

« R. S. C. c. 157, s 5 ; 48 & 49 Vict. o. 69, s. 6. 

* [A father who allows his daughter livinx with him to act as a prostitute in his house 
is within this provision. It . v. Webster, L. R. 16 Q. B. D. 136.] As to belief, see B. r. 
Packer, 16 Cox, C. C. 67. 



THE CRIMINAL LAW. 167 

(a.) is guilty of felony, and liable to ten years' imprison- 
ment, if such girl is under the age of twelve years ; and 

(6.) is guilty of a misdemeanor, and liable to two years' 
imprisonment, if such girl is of or above the age of twelve 
and under the age of sixteen years. 

It shall be a sufficient defence to any charge under this 
Article if it is made to appear to the court or jury before 
whom the charge is brought, that the person so charged 
had reasonable cause to believe that the girl was of or 
above the age of sixteen years. 

^Article 223. 
unlawfully defiling women. 

^ Every one is guilty of a misdemeanor, and liable to 
two years' imprisonment, who, by false pretences, false 
representations, or other fraudulent means, — 

{a.) procures any woman or girl, under the age of 
twenty-one years, to have illicit carnal connection with 
any man other than the procurer ; or 

(6.) inveigles or entices any such woman or girl to a 
house of ill-fame or assignation, for the purpose of illicit 
intercourse or prostitution, or who knowingly conceals 
in such house any sucH woman or girl so inveigled or 
enticed. 

^Article 224. 

conspiracy to defilr. 

* [Every one commits the misdemeanor of conspiracy 
who agrees with any other person to induce an}'' woman 
to commit adultery or fornication, or to take any woman 
from the lawful custody of her parents, in order to marry 
her to any person without their consent ; 

(Submitted.) Provided, that an agreement between a 

' S. D. Art. 173. 

■- R. S. C. 0. 157, B. 7 ; 24 & 25 Viot. o. 100, b. 49 ; 48 & 49 Viot. o. 69, bb. 2, 10. 
=■ 8. D. Art. 174. 

♦ [K. V. Lord Grey, 3 St. Tr. 519 ; 1 EostlP. C. 460 ; 7Z. v. J»fear», 2 Den. 0. C. 79 ; R. y. Jh- 
laval 3 Burr. 1434. Draft Code, s. 149.] 



168 A DIGEST OF 



[man and a woman to commit fornication or adultery, or 
that the woman shall leave the lawful custody of her 
parents without their consent, in order to marry the 
man, is not a conspiracy.] 

Article 225. 
seduction of females who are passengers on 

VESSELS. 

^ Every one is guilty of a misdemeanor and liable to a 
fine of four hundred dollars, or to one year's imprison- 
ment, who, being the master or other officer or a seaman 
or other person employed on board of any vessel, while 
such vessel is in any waters within the jurisdiction of 
the Parliament of Canada, under promise of marriage, or 
by threats, or by the exercise of his authority, or by soli- 
citation, or the making of gifts or presents, seduces and 
has illicit connection with any female passenger. 

The subsequent intermarriage of the seducer and the 
seduced is, if pleaded, a good defence to any indictment 
for any such offence. 

Article 226. 

prevention of immoral intercourse with female 

immigrants. 

^ Every officer, seaman or other person employed on 
board of any vessel bringing immigrant passengers to 

' R. S. C. c. 65, s. .!7. This provision occurs in The Immwrnnt Act, but is not in terms 
limited to vessels bringing iiumigrants or tu female immigrant passengers, as is the case 
in respect of the offences defined in Article 226. 

- R. S. C. c. 65, 8. 38. The penalties are recoverable at the suit of a collector of cus- 
toms or Dominion immigration agent in a summary manner before two justices of the 
peace if the amount does not exceed eighty dollars, otherwise by civil action by such officer 
in a court of competentjurisdiction. See s. 42, by the third clause of which it is provided 
that if the penalty exceeds forty dollars tue offenoe is a misdemeanor punishable by fine 
or imprisonment or both in the discretion of the court. By s. 39 the master of any suoh 
vessel is bound under a penalty of fifty dollars to post in a conspicuous place on the fore- 
castle, and in the i)artB of the vessel assigned to immigrant passengers, notices in English, 
French and German containing the provisions of t, 38, on which the text is founded. 



THE CRIMINAL LAW. 169 

Canada, who, while such vessel is in any waters within 
the jurisdiction of the Parliament of Canada, entices or 
admits any female immigrant passenger into his apart- 
ment, or, except by the direction or permission of the 
master of such vessel first made or given for such pur- 
pose, visits or frequents any part of such vessel assigned 
to female immigrant passengers, is liable to a penalty 
equal in amount to his wages for the voyage during 
which the said offence has been committed. 

Every master of any such vessel who, while such 
vessel is in such waters, directs or permits any officer or 
seaman or other person on board of such vessel to visit 
or frequent any part of su(^h vessel assigned to immi- 
grant passengers, except for the purpose of doing or per- 
forming some necessary act or duty as an officer, seaman 
or person employed on board of such vessel, is liable to a 
penalty of twenty-five dollars for each such offence. ^ 

The provisions of this Article do not api)ly to cabin pas- 
sengers, or to any part of the vessel assigned to their use. 

Article 22Y. 

PROSTITUTION OF INDIAN WOMEN. 

^ Every one is guilty of a misdemeanor, and liable to a 
penalty not exceeding one hundred dollars and not less 
than ten dollars or to six months' imprisonment, 

{a.) who, being the keeper ^ of any house, tont or wig- 
wam, allows or suffers any Indian woman to be or remain 
in such house, tent or wigwam, knowing, or having pro- 
bable cause for believing that such Indian woman is in 

'" occasion on which lie so directs or permits the provisions of this section to be 
violated by any such officer, seaman or other person." 

^ R. S. C, c. 43, 8. 10() ; 50 &51 Vict. (D.) c 33, s. 11. Clause (a.) applies to Indians as 
well as to those who are not Indians. 

•' Every person who appears, acts or behaves as master or mistress, or as the person who 
has the care or management of, any house, tent or wigwam in which any Indian woman 
is, or remains for the purpose of, prostituting herself therein, is deemed to be the keeper 
thereof, notwithstanding he or she is not in fact the real keeper thereof ; R. S. C. c, 43, 
8. 107, 



lYO A DIGEST OF 



or remains in such house, tent or wigwam with the 
intention of prostituting herself therein ; or, 

(b.) who, being an Indian woman, prostitutes herself 
therein ; or 

(c.) who, being an Indian, keeps, frequents or is found 
in a disorderly house, tent or wigwam used for any such 
purpose. 

^ Article 228. 

preventing the burial of dead bodies and disinter- 
ring them.^ 

^ [Every one commits a misdemeanor who prevents the 
burial of any dead body, or who, without authority, dis- 
inters a dead body, even from laudable motives ; or 

who, having the means, neglects to bury a dead body 
which he is legally bound to bury, provided that no one 
is legally bound to incur a debt for such a purpose ; or 

* who buries or otherwise disposes of any dead body on 
which an inquest ought to be taken, without giving 
notice to a coroner ; or 

who, being under a legal duty to do so, fails to give 
notice to a coronfer that a body on which an inquest 
ought to be held is lying unburied, before such body has 
putrified. 

1 S. D. Art, 175. 

2 [In Ji.v. Price, L. R. 12 Q. B. D. 247, 1 held that to burn a dead body instead of bury- 
ing it was not in itself a misdemeanor, if it was so done as not to amount to a public 
nuisance. This decision is to a certain extent recognized in R. v. Stephf.mon (L. 11. 13 
Q. B. D. 331). There were no means of questioning it. 

" R. V. Vann, 2 Den. C.C. 32'. Inquests ought to be held when the coroner on reasonable 
grounds and in good faith believes that the deceased person's death was of suoh a nature 
as would, if true, justify the holding of an inquest ; R. v. Stephenson, L. R. 13 Q. B. D. 
331. A man is bound to bury his child's body, and, I suppose, his wife's. In R, v. Vann, 
Lord Campbell said, " A man is bound, if he has the means, to give his child Christian , 
burial." This can hardly be a duty in the case of persons who are not Christians, but 
probably " Christian " means only decent. It appears from R. v. Stewart, 12 A. & E. 773, 
779, that the person under whose roof another person dies is under a legal duty to carry 
the corpse, decently covered, to the place of burial if there is no one else who is bound to 
bury it. Draft Code, s. 15S. 

* 1 Russ. Cr. 620 (5th ed.) 7ih Rep. G. L. C. pp. 60, 51 ; and see R. v. Stephenson, L. R. 13 
Q. B. D. 331.] 



THE CRIMINAL LAW. Vjl 



Illuslrations. 

[(1.) * A digs up a dead body and sells it for purposes of dissection. This 
is a misdemeanor. 

(2.) ^ A, without the consent of a dissenting congregation, to which a 
burial ground belonged, or of trustees having the legal estate therein, but 
with the leave of the person in charge, digs up his mother's coffin in 
order to bury it in his father's grave in a churchyard some miles ofl. 
This is a misdemeanor. 

(3.) ' A, a gaoler, refuses to deliver up for burial the dead body of a 
prisoner who had died in gaol to the executors, on the ground that the 
deceased person owed him money. This is a misdemeanor.] 



^ [R.v. Lynn, 1 Leaoh4tt7. 

2 R. V. Sharpe, D. & B. 160. 

3 B. V. Scott, 2 Q. B. 248 (in note to B. v. Fox).} 



172 A DIGEST OF 



CHAPTER XX. 

common nuisances— disorderly houses— oaming 

—lotteries. 

' Article 229. 

common nuisance. 

^ [A COMMON nuisance is an act not warranted by law 
or m omission to discharge a legal duty, which act or 
omission obstructs or causes inconvenience or damage to 
the public in the exercise of rights common to all Her 
Majesty's subjects. It is immaterial whether the act 
complained of is convenient to a larger number of the 
public than it inconveniences, but the fact that the act 
complained of facilitates the lawful exercise of their rights 
by part of the public may shew that it is not a nuisance 
to any of the public. 

Illitstrations. 

(1.) ^ An electric telegraph company without legal authority erects a 
telegraph pole in a permanent manner on the waste at the side of and 
forming part of a highway, leaving room enough for the use of the high- 
way, and not affecting either the metalled road or the footpath by the 
side of it. This is a public nuisance, b^^^ause a small portion of space 
which the public had a legal right to use is obstructed. 

(2.) * A tramway laid down on a high road in such a manner as to ob- 
struct to some extent the use of the road by common carriages is a public 
nuisance, although it may be convenient to a large majority of those who 
use the road. 

(3.) ^ The public have a right to use the Tyne as a highway, and to 



1 S. D. Art. 176. 

- [I Hawk. P. C. 692. The question as to the public benefit of the act complained of may 
arise indirectly. Draft Code, s. 15). 

^ R. V. United Kingdom Telegraph Co., 3 F. & F. 73. 

* R. V. Train, ^ B. & S. 640, 

" J?,v. iJitweW, 6B. AC. 568, I think this is the effect of the case, which deserves 
careful study. It is referred to in R, v. Train, but I doubt whether it is not misunder- 
stood there. Lord Tenterden difiered in it from Bayley and Holroyd, JJ. Of the eight] 



THE CRIMINAL LAW. VtZ 



[anchor ships therein for a reasonable time to take in cargoes of coal. A 
erects staiths and spouts at which ships moored for the purpose can take 
in coal, but which prevent ships not lying at them from sailing over part 
of the waterway where they would otherwise be able to sail. The fact 
that the arrangement is on the whole convenient with regard to the public 
use of the river may be considered by the jury in deciding whether the 
staiths are a nuisance or not. 

(4.) The non-repair of a public highway is a public nuisance. 

(5.) ^ A railway company makes a railway within five yards of an 
ancient public highway in sucli a manner that the locomotives frighten 
the horses of persons using the highway as a carriage road. The railway 
is made and the locomotives used under Acts of Parliament, which do 
not require the railroad company to screen tlie line from the road. Thig 
is not a public nuisance because the act done is warranted by law. 

^ Article 230. 

common nuisance a misdemeanor. 

^ Every one who commits any common nuisance is 
guilty of a misdemeanor. 

* Article 231. 

keeping disorderly houses. 

'^ Every one vfh.o keeps a disorderly house commits a 
common nuisance. 



counsel engaged seven became judges. R. v. Betta, 16 Q. B. 1022, refers to it in a manner 
which seems to me inadequate. In A. G, t. Terry (L. R. Ch. App. 425) Jessel, M. R., 
disapproved of R. v. Russell, though he approved of the doctrine which I understand to 
be laid down in it. The turning point of the case, as I understood it, is that the ships 
anchored under the spouts bad a right to anchor there for a reasonable time to receive 
cargo, and that the spouts being recognized by stittute could not be regarded as in them- 
selves illegal. The question on which the judges difiFered was whether Bayley, J., had 
influenced the jury by referring to the collateral advantage of cheapening coal in the 
London market. The effect of time in legalizing a nuisance is somewhat similar, It 
has not in itself that effect, but the fact that a given state of things is of very long atand* 
ing may be evidence that it is not in fact a nuisance ; see oases in 1 Russ. Cr, 421 and 442. 
The view taken by the Criminal Law Commissioners is rather different ; see 7th Rep. 
p. 59. 

' R. V. Pease, 4 B. A Ad. 30.] 

" S. D. Art. 177. 

nCf. Draft Code, ss. 151-2.] 

* S. D, Art, 178. 

^ [Draft Code, 8. 154.] 



174 A DIGEST OF 



' [Any person who appears, acts, or behaves as master or 
mistress, or as the person having the care, government, 
or management, of any disorderly house, is to be deemed 
and taken to be the keeper thereof, and is liable to be 
prosecuted and punished as such, although, in fact, he is 
not the real owner or keeper thereof. 

' But the owner of a house, conducted as a disorderly 
house by a person to whom he lets it as a weekly tenant, 
is not the keeper of the house merely because he knows 
the use to which it is put, and does not give his tenant 
notice to quit. 

^ Article 232. 
disorderly houses. 

The following houses are disorderly houses, that is to 
say, common bawdy houses, common gaming houses, 
common betting houses, disorderly places of entertain- 
ment. 

^ Article 233. 
common bawdy houses. 

^ A common bawdy house is a house or room, or set of 
rooms, in any house kept for purposes of prostitution. 
And it is immaterial whether indecent or disorderly 
conduct is or is not perceptible from the " outside. 

^ Article 234. 

common gaming houses. 
* A common gaming house is any house, room, or place 

1 [25 Geo. 2, c. 36, s. 8 ; 21 Geo. 3, c. 49, s, 2. 

^ R. V. Barrett, L. &. C. 263, and see R, v. Stannard, L. & 0. 349, where the whole house 
was let in parts to different women as weekly tenants.] 

•' S. D. Art. 179. See Appendix Note VI. 

< S. D. Art. 180. 

"> [1 Rusa. Or. 427, gee cases ; R.v. Pierson, 2 Lord Raym, 1197 ; see also Chitty, and 8 
Steph. Com. 353, n. Draft Code, s. 155. 

« R. V. Rice & Wilton, L. R. 1 C. C. R, 21.] 

' S. D. Art. 181. 

' [This definition appears to me to be established by the interpretation put by Jenka v. 
Turpin, L. R. 13 Q. B. D. 505 on, inter aliu, 17 & 18 Viet, o, 88, 8. 4. The law is discussed 
at length in the judgments of SirH. Hawkins and Smith, J.] R. v. Shaio, 4 Man.L. K. 404. 



THE CRIMINAL LAW. ITS 



[kept or used for the purpose of unlawful gaming therein 
by any considerable number of persons. 

Gaming means playing at games either of chance, or of 
mixed <;hance and skill. 

Unlawful gaming means gaming carried on in such a 
manner, or for such a length of time or for such stakes 
(regard being had to the circumstances of the players) 
that it is likely to be injurious to the morals of those who 
game. 

All gaming is unlawful in which 

(i.) a bank is kept by one or more of the players, 
exclusively of the others ; or 

(ii.) in which any game is played the chances of which 
are not alike favorable to all the players including 
among the players the banker or other person by whom 
the game is managed, or against whom the other players 
stake, play or bet.] 

^ Article 235. 
evidence that a house is a common gaming house. 

The following circumstances are evidence (until the 
contrary is proved) that a house, room, or place is a 
common gaming house, and that the persons found 
therein were unlawfully playing therein : that is to say, 

(i.) ^ Where any cards, dice, balls, counters, tables, or 
other instruments of gaming used in playing any un- 
lawful game are found in any house, room, or place 
suspected to be used as a common gaming house, and 
entered under a warrant or order issued under The 
Revised Statutes, chapter 158, or about the person of any 
of those found therein. 

(ii.) ^ "Where any constable or officer, authorized as 
aforesaid to enter any house, room, or place, is wilfully 
prevented from, or obstructed, or delayed in entering the 

*S. D. Art. 183. 

" R. S. C. c. 158, 8. 4 ; 8 & 9 Viot. c. 109, s. ?, 

3 11. S. C. 0. 158. 8. 8 i 17 & 18 Viet. o. 38. s. 2. 



176 A DIGEST OF 



same or any part thereof, or where any external or in- 
ternal door or means of access to any such house, room, 
or place so authorized to be entered is found to be fitted 
or provided with any bolt, bar, chain, or any means or 
contrivance for the purpose of delaying, preventing, or 
obstructing the entry into the same, or any part thereof, 
of any constable or officer authorized as aforesaid, or for 
giving alarm in case of such entry ; or 

(iii.) If any such house, room, or place is found fitted or 
provided with any means or contrivance for unlawful 
gaming, or for concealing, removing, or destroying any 
instruments of gaming. 

Article 286. 

gaming in stocks and merchandise. 

^ Every one is guilty of a misdemeanor and liable to 
five years' imprisonment and to a fine of five hundred 
dollars who, 

(a.) with the intent to make gain or profit by the rise 
or fall in price of any stock of any in corporated or unin- 
corporated company or undertaking, either in Canada or 
elsewhere, or of any goods, wares or merchandise, 

(i.) without the bond fide intention of acquiring any 
such shares, goods, wares or merchandise, or of selling 
the same, as the case may be, makes or signs, or authorizes 
to be made or signed, any contract or agreement, oral or 
written, purporting to be for the sale or purchase of any 
such shares of stock, goods, wares or merchandise ; or 

(ii.) makes or signs, or authorizes to be made or signed, 
any contract or agreement, oral or written, purporting to 
be for the sale or purchase of any such shares of stock, 

' 51 Vict. (D.) e. 42, p. 1. Every office or place of buainess wherein is carried on the 
business of making or signing or procuring tu he made or signed, or neeotiuting or 
bargaining for the making or signing of such contracts of sale or purchase as are prohi- 
bited in this Article, is a common gaming house, and every one who as prii>cipal or agent 
occupies, uses, manages or maintains the same is the keeper of a common gaminghouse; 
(51Viot.(D) 0.42, 8.3.) 



THE CRIMINAL LAW. 17T 

goods, wares or merchandise, in respect of which no 
delivery of the thing" sold or purchased is made or 
recei \, and without the bond fide intention to make or 
receive such delivery ; or 

(6.) acts, aids, or abets in the making or signing of 
any such contract or agreement. 

But it is not an offence if the broker of the pur- 
chaser receives delivery, on his behalf, of the article sold, 
notwithstanding that such broker retains or pledges the 
same as security for the advance of the purchase money 
or any part thereof. v, ., ; 

- Article 237. ■ v 

HABITUALLY FREQUENTING PLACES WHERE GAMING IN 
STOCKS IS CARRIED ON. 

^ Every one is guilty of a misdemeanor and liable to 
one year's imprisonment who habitually frequents any 
office or place wherein the making or signing, or procuring 
to be made or signed, or the negotiating or bargaining for 
the making or signing, of such contracts of sale or pur- 
chase as are mentioned in the Article next preceding is 
carried on. 

Article 238. 

PLAYING or looking ON IN GAMING HOUSE. 

^ Every one who plays or looks on while any other 
person is playiug in a common gaming house is guilty of 
a misdemeanor, and liable, on summary conviction before 
two justices of the peace, to a penalty not exceeding one 
hundred dollars and not less than twenty dollars, and, in 
default of payment, to imprisonment for a term not 
exceeding two months. 

» 61 Vict. (D.) 0. 42, 8. 1 (2). 

* R. S. C. 0. 158 8. 6. This Article does not apply to persons who are in an ofBoe or place 
of business wherein themakinKof suoh oontraots as are mentioned in Artinin Mft <« <*'irried 
on ; R. V. Murphu, 17 0. R. 201. 

N 



ITS A DIGEST OF 



Article 239. 
obstructing peace officers entering a gaming 

HOUSE. 

• Every one who 

(a.) wilfully prevents any constable or other officer, 
authorized under The Revised Statutes, chapter 158, to 
enter any house, room or place, from entering the same 
or any part thereof ; or 

(b.) obstructs or delays any such constable or officer in 
so entering ; or 

(c.) by any bolt, chain or other contrivance, secures 
any external or internal door of, or means of access to, 
any house, room or place so authorized to be entered ; or 

(d.) uses any means or contrivance whatsoever for the 
purpose of preA'^enting, obstructing or delaying the entry 
of any constable or officer, authorized as aforesaid, into 
any such house, room or place, or any part thereof. 

Is guilty of a misdemeanor, and liable, on summary 
conviction before two justices of the peace, to a penalty 
not exceeding one hundred dollars, with costs, and to 
imprisonment with or without hard labor for any term 
not exceeding six months. 

Article 240. 
gambling in public conveyances. 

^ Every one is guilty of a misdemeanor, ^ and liable to 
imprisonment for any term less than one year, who 

(«.) in any railway car, or steamboat, used as a public 
conveyance for passengers, by means of any game of 
cards, dice or other instrument of gambling, or by any 
device of like character, obtains from any other person 
any money, chattel, valuable security or property ; or 

> K. S. C. 0. 158, s. 7 ; 17 & 18 Viot. c. 38, «. 1. 

2R. S. C. 0. 1'O. SB. 1,2, .3,6. 

" The misdomeauor of obluiuiiig the game by false proteooeg (a. 1). 



THE CRIMINAL LAW. VJ%: 

(b.) attempts to commit such offence by actually engag- 
ing any person in any such game with intent to obtain 
money or other valuable thing from him. 

Every conductor, master or superior officer in charge 
of, and every clerk or employee when authorized by the 
conductor or superior officer in charge of, any railway 
train or steamboat, station or landing place, in or at 
which any sucl offence, as aforesaid, is committed or at-> 
tempted, must, with or without warrant, arrest any person 
whom he has good reason to believe to have committed 
or attempted to commit the same, and take him before a 
justice of the peace, and make complaint of such offence 
on oath, in writing. 

Every conductor, master or superior officer in charge 
of any such railway car or steamboat, who makes default 
in the discharge of any such duty, is liable on summary 
conviction to a penalty not exceeding one hundred dollars 
and not less than twenty dollars. 

Every company or person who owns or works any 
such railway car or steamboat, must keep a copy of 
chapter 160 of The Revised Statutes posted up in some 
conspicuous part of such railway car or steamboat. 

Eve^y company or person who makes default in the 
discharge of such duty, is liable to a penalty not exceed- 
ing one hundred dollars and not less than twenty dollars. 

'Article 241. 
eettinq and pool selling. 

'^ Every one is guilty of a misdemeanor, and liable to a 
fine not exceeding one thousand dollars and to one year's 
imprisonment, who 

(a.) uses or knowingly allows any part of any premises 
under his control to be used lor the purpose of recording 
or registering any bet or wager, or soiling any pool ; or 

' S. D. Art. 182. See Appendis, Note VI. 

« R. 8. C. c. 159, 8. 0; 16 Jk 17 Viot. o. 119, ss. 1, 4, 6. 

n2 



180 A DIGEST OF 



{b.) keeps, exhibits, or employs, or knowingly allows to 
be kept, exhibited or employed, in any part of any pre- 
mises under his control, any device or apparatus, for the 
purpose of recording or registering any bet or wager or 
selling any pool ; or 

(c.) becomes the custodian or depositary of any money, 
property, or valuable thing staked, wagered or pledged ; 
or, 

{d.) records or registers any bet or wager, or sells any 
pool, — 

upon the result of any political or municipal election, 
or of any race, or of any contest or trial of skill or endur- 
ance of man or beast. 

Nothing herein applies to any person by reasc i of his 
becoming the custodian' or depositary of any money, pro- 
perty or valuable thing staked, to be paid to the winner 
of any lawful race, sport, game or exercise, or to the 
owner of any horse engaged in any lawful race, or to 
bets between individuals. 

^Article 242. 
disokderly places of entertainment. 

^ In Ontario, British Columbia, Manitoba and the 
North-West Territories [the following places are disorderly 
places of entertainment, that is to say — 

^ Every house, room, or other place opened or used for 
public entertainment or amusement, or 'for public debat- 
ing on any subject whatsoever upon any part of the 
Lord's Day called Sunday, and to which persons are 

' The Act does not apply to the custodian of money staked by two persons upon a bet 
between themselves on the result of a boat race ; li.y. Dillon, 10 Ont. P. R. 352. A trotting 
match for fifty pounds between two horses driren in harness in sleighs on the ioe is a legal 
horse race within 13 Geo. 2, o. 19, and 18 Geo. 2, c. 34 ; FStlton v. Jamen, 5 U. C. C. P. 182. 

" S. D. Art. 184. 

" [21 Geo. 3, 0. 49, s. 1.] R. ». Bamei, 45 U. C. Q. B. 276, iu which a conviction under 
this statute for keeping a disorderly house, known as the Royal Opera House, opened and 
used for public entertainment and amusemtfnt on the Lord's Day, was sustained. 



THE CRIMINAL LAW. 181 



[admitted by the payment of money, or by tickets sold for 
money. 

The following places are deemed to be places to which 
persons are admitted by the payment of money, although 
money is not taken in the name of or for admittance, that 
is to say, any house, room, or place — 

^ (i) at which persons are supplied with tea, coflfee, or 
other refreshments of eating or drinking on the Lord's 
Day at any greater pnce than the common and usual 
prices at which the ike refreshments are commonly 
sold upon other days thereat, or at places where the 
same usually are sold ; 

(ii.) any house, room, or place opened or used for any 
of the purposes aforesaid at the expense of any number of 
subscribers or contributors to the carrying on of any such 
entertainment, or amusement, or debate, on the Lord's 
Day, and to which persons are admitted by tickets to 
which the subscribers or contributors are entitled. 

^ Article 243. 
disorderly inns. 
■* A disorderly inn is an inn kept in a disorderly manner 
and suffered to be resorted to by persons of bad character 
for any improper purpose. 

Every person who keeps a disorderly inn, or who, being 
au innkeeper, refuses, without reasonable grounds, to 
entertain any person ready and willing to pay for enter- 
tainment therein, commits a misdemeanor.] 

^ Article 244. 

lotteries. 
'Every one is guilty of a misdemeanor and liable on 
summary conviction to a penalty of twenty dollars who, 

'•ilUoo. .'ic. Wsi. 2. 
'-S. D. Art. 185. 

■' Preoedont of indiottnonti 3 Chit. Critn. Law, 672-3. As to refusing ontortaininent, see 
if. V. Rumcr, L. 11. 2 Q. B. D. 136. 
*S.D. Art. 18(). 
» [10 Will. 3, c. 23, g. 1 ; 42 Geo. 3, o. 119, g. 2. And see R. v. Crawshaw, Bell, C. C. 803.] 



182 . A DIGEST OF 



^ (a.) makes, prints, advertises or publishes, or causes 
or procures to be made, printed, advertised or published, 
any proposal, scheme or plan, for advancing, lending, 
giving, selling or in any way disposing of any property, 
by lots, cards, tickets, or any mode of chance whatso- 
ever. ; or 

(b.) sells, barters, exchanges or otherwise disposes of 
or causes or procures, or aids or assists in the sale, barter, 
exchange or other disposal of, or offers for sale, barter or 
exchange, any lot, card, ticket or other means or device, 
for advancing, lending, giving, selling or otherwise dis- 
posing of any property, by lots, tickets or any mode of 
chance whatsoever ; or 

^ (c.) buys, barters, exchanges, takes or receives any 
such lot, card, ticket, or other device. 

* Every sale, loan, gift, barter or exchange of any 
property, by any lottery, ticket, card or other mode of 
chance whatsoever, depending upon or to be determined 
by chance or lot, is void, and all such property so sold, 
lent, given, bartered or exchanged,'is liable to be forfeited 
to any person who sues for the same by action or 
information in any court of competent jurisdiction. 
'-■ * No such forfeiture shall affect any right or title to such 
property acquired by any bond fide purchaser for valuable 
consideration, without notice. 

^ This article applies to the printing or publishing, or 
causing to be printed or published, of any advertisement, 
scheme, proposal or plan of any foreign lottery, and to 

ip.S. C.c.159,8. 2; 8 Geo. 1, c. 2, g. .36 ; 6 & 71^111.4, c. 66. The disposition of 
property by a plan involving the exercise of judgment and skill) and not by lot, card, 
ticket or chance, is not within the prohibition ; U. v. Dodda, i 0. R. 390 ; Ji. v. Jamieson, 
7 0. R. 149. 

2 R. S. C. c. 159, g. 3 ; 8 Geo. 1, c. 2, g. 37 ; 12 Geo. 2, o. 28. s. 3. 

» R. S. C. c. 159, 8. 4 ; 12 Geo. 2 c. 28, s. 4. Po)ev v. Caniff, 18 U. C. Q. B. 403 ; Cronvn v. 
Widder, 16 U. C. Q. B. 356 ; Corbv v. McDaniel, 16 U. C. Q. B. 378 ; Marahall v. Piatt, 8 
U. C. C. P. 189 ; Loi/d V. Clark, 11 U. C. C. P. 248 ; Clarke v. Donelly, 1 Ont. Dig. 1620 ; 
see alHo Iai SocUtd <to, St. Louit v. Villeneuve, 21 L. C. J. 309. 

^ R. S. C. c. 159, 8. 5. 

6 R. S. C. e. 159, 8. 6 ; 9 Geo. 1 c. 19, g. 4 ; 6 Geo. 2 c. 35, s. 29 ; 64 7 Will. 4 0.66. 



THE CRIMINAL LAW. 183 

the sale, or offer for sale, of any ticket, chance or share, 
in any such lottery, or to the advertisement for sale of 
such ticket, chance or share. 

^ This article does not apply to — 

(a.) the division by lot or chance of any property by 
joint tenants or tenants in common, or persons having 
joint interests {droits indivis) in }»ny such property ; 

^ {b.) ratfles for prizes of small value, at any bazaar held 
for any charitable object, if permission to hold the same 
has been obtained from the city or other municipal coun- 
cil, or from the mayor, reeve or other chief officer of the 
city, town or other municipality, wherein such bazaar is 
held, and the articles raffled for have thereat first been 
offered for sale, and none of them are of a value exceeding 
fifty dollars ; 

(c.) any distribution by lot, among the members or 
ticket holders of any incorporated society established for 
the encouragement of art, of any paintings, drawings or 
other work of art, produced by the labor of the members 
of, or published by or under the direction of, such in- 
corporated society. 

^The expression "property" in this article includes 
every description of money, chattel and valuable security, 
and every kind of personal property and every description 
of land, and all estates and interests therein. 

* Article 245. 

nuisances to health, life, and property. 

'^ [Every person commits a common nuisance who does 
anything which endangers the health, life, or property of 
the public or any part of it. 

» R. S. C. c. 159, 8. 7 i 12 Geo. 2, o. 23, g. 11. 
» R. S. C. 0. 159, 8. 8, 
»K. 8.0.0.159.8.1. 

^ S. D. Art. 187. See chapter 51 as to the adulteration of food, &e. 
' rSee oases in Illustrations. The offences of being a common scold and of eares- 
dropping would fall under this head, but they may be regarded as practically obsolete.] 



184 A DIGEST OF 



^ [Publicly and wilfully exposing or causinj? to be ex- 
posed for sale articles of food unfit for consumption, and 
knowingly permitting servants to mix unwholesome 
ingredients in articles of food, are acts endangering the 
health or life of the public within the meaning of this 
Article. 

^Everything is deemed to endanger health, life, or 
property, which either causes actual danger thereto, or 
which must do so in the absence of a degree of prudence 
and care the continual exercise of which cannot be 
reasonably expected. 

IlluHrations. 

(1.) •' A carries a child infected with the sinall-pox along a public high 
way in which persons are passing, and near to inliabited houses. A 
commits a common nuisance. 

(2.) * A permits his house standing by the highway to become so ruin- 
ous as to be lilvely to fall down, and to injure passengers. A commits a 
common nuisance. 

(3.) ''A burns do'vn his own house, it being in a situation which makes 
such burning dangerous to others. A commits a common nuisance. 

(4.) "A, a baker, under a contract to supply children at a military asy- 
lum with bread, delivers loaves into which his servant, to his knowledge, 
has introduced alum. A commits a common nuisance. 

(5.) " A keeps in a warehouse in the city of London large quantities of 
a mixture of spirits of wine and wood naplitha, forming a substance more 
inflammable tlian gunpowder, and of such a nature tliat a fire lighted by 
it would be practically unquenchable. A commits a common nuisance, 
although he uses the most scrupulous care to avoid accidents. 



1 [Draft Code, .«. 153. 

- Illustration (o). 

'•'Ji.v. Vanl'tndilloAM.. A S. 73. So of bringing a glandered horse to a fair ; R.y. 
Henxon, Dear. 24. An infected person e.xposing himself would oommit the same offence. 

< R. V. WntHon, 2 \A. Raym. 850. 

* R. V. Proberfa, 2 East P. C. 1030. If there were an intent to injure or defraud, this 
would be' felony. .See Article 562(c). 

« R. V. Dixon, 3 M. & S. 11. See, too, R. v. Cntwleu, 3 F. & F. 109 ; R. v. JarvU, 3 F. <k 
F. 108. 

' Lhter'n Ciine, 1 D. A B. C. C. 209.] See to same effect in respect of gunpowder, R. V. 
Dunlop, II L, C. J. 186, and in respect of dynamite R, v. Holmes, 6 R. & G. 498. 



THE CRIMINAL LAW. 185 

' Article 246. 

nuisances by offensive trades. 

^ [Every one commits a common nuisance who, for the 
purposes of trade or otherwise, makes loud noises, or 
offensive or unwholesome smells, in such places and 
under such circumstances as to annoy any considerable 
number of persons in the exercise of rights common to all 
her Majesty's subjects. 

;^; ' - ^Article 24*7. 

nuisances to highways. 

Every one commits a common nuisance who obstructs 
any highway, by any permanent work or erection thereon 
or injury thereto, which renders the highway less com- 
modious to the public than it would otherwise be ; or 
who prevents them from having access to any part of it 
by an excessive and unreasonable temporary use thereof,* 
or by so dealing with the land in the immediate neigh- 
borhood of the highway as to prevent the public from 
using and enjoying it securely. 

Illw^trations. 

Each of the following acts is a nuisance to a highway : 

(1.) ^ Digging a ditch, or making a liedge across it, or ploughing it up. 

(2.) " Allowing waggons to stand before a warehouse for an unreasonable 
time, as, to occupy great part of the street for several hours by day and 
night. 

(3.) ' Keeping up a hoarding in front of a house in a street for the pur- 
pose of repairs for an unreasonable time. 



1 S. D. Art. 188. 

2 [1 Russ. Cr. 419.] 

' S. D. Art. 189. R. v. The Mayor d; St. John, Chipman, 155 ; R. v. BriUain, 2 Kerr 614. 

* As to use of the streets by the Salvation Arinyi see R. v. Brice, 15 Q. L. R. 147, 152. 

6 [1 Russ. Cr. 485. 

« R. V. Russel, 6 Eiiat, 427. 

' R. V. Jones, 3 Camp. 230.] 



186 A DIGEST OF 



[(4.) ' Excavating an area close to a footpath, and leaving it unfenced. 
(5.) '■' Blasting stone in a quarry so as to throw stones upon the houses 
and road. 

^Article 248. 

nuisances to bridges. 

* Every one is guilty of a common nuisance who, being 
bound by law to repair a bridge, leaves it unrepaired. 

I- 

"Article 249. 

* nuisances to navigable rivers. 

Every one is guilty of a common nuisance who wilfully 
diverts or obstructs the course of any navigable river ' 
so as appreciably to diminish its convenience for pur- 
poses of navigation, even though the alteration may, 
upon the whole, be for the convenience of the public ; * 
but the owner of a vessel wrecked in a navigable river is 
not guilty of a common nuisance because he does not 
remove it.] 

» [BameK v. Ward, 9 C. B. 392. 

■ R. V. Mutters, L. & C. 491.] 

8 S. D. Art. 190. 

* [1 Ru88. Cr. 5;W-57, where the whole law as to the liability to repair different classes of 
bridges is discussed.] 

5 S. D. Art. 191. 

8 1 Russ. Cr. 520.] 

' 2i. V. llandull, C. & M. 496 ; 7?. v. Rmael, 3 E. & B. 942. 

^ R. V. Watts. 2E?p. 675; White v. Crisp, 10 Ex. 318; Brown v. Mallett, 5 C. B. 599. 
White V. Crisp and Brown v. Mallett are not altogether consistent on the further question 
as to the duty of the o ;ner to buoy his vessel) or othertriso provide against other vessels 
striking on it.] See R. S. C. c. 91, ss. 1-6, as to the duty of tae owner or master to provide 
signals in such a case and as to their liability to remove the obstruction ; and s. 7 as to the 
offence of throwing rubbish into navigable rivers. 



THE CRIMINAL LAW. 18t 



CHAPTER XXI. 
VAGRANCY— LOITERING NEAR SHIPS. 

^ Article 250. 
idle and disorderly persons. 

^ All persons are loose, idle or disorderly persons or 
vagrants who, 

(a.) ^ not having visible means of maintaining them- 
selves, live without employment, — 

(b.) being able to work and thereby or by other means 
to maintain themselves and families, wilfully refuse or 
neglect to do so, — 

(c.) openly expose or exhibit in any street, road, 
public place or highway, any indecent exhibition, or 
openly or indecently expose their persons,* — 

{d.) without a certificate signed, within six months, 
by a priest, clergyman or minister of the gospel, or two 
justices of the peace, residing in the municipality where 
the alms are being asked, that he or she is a deserving 
object of charity, wander ^ about and beg, or go about 
from door to door, or place themselves in any street, high- 
way, passage or public place to beg or receive alms, — 

1 S. D. Arts. 192, 193, 194. These Articles include some ofifences not defined in the Act 
from which the text is taken, part of which are founded on 5 Geo. 4, c. 83. I have not, 
however, thought it necessary to add anything to the text, although the latter Act might 
be held to be in force in British Columbia, Manitoba, and the North-West Territories 
so fur as applicable thereto. 

2 R. S. C. c. 157, 8. 8 ; 5 Geo. 4, o. 83, ss. 3, 4 ; 1 & 2 Vict. o. 38, s. 2 ; 3 Hist. Cr. Law, 
266-275. 

^ A person cannot be convicted of the offence defined in this clause unless he has 
acquired in some degree a character that brings him within its terms. E. v. Basaett, 10 Ont. 
P. R. 386. 

< See Art. 217. 

^ [The wandering. &c., must be as a habit of life. Persons who go about collecting alms 
for a specific purpose, and not as a way of life, are not within the statute; Pointony. 
Bill, L.R. 12 Q..B.D. 306.} 



188 A DIGEST OF 



(e.) ' loiter on any street or highway, and obstruct 
passengers by standing across the footpaths or by using 
insulting language, or in any other way, — 

(/.) cause a disturbance in any street or highway by 
screaming, swearing or singing, or by being drunk,^ or by 
impeding or incommoding peaceable passengers, — 

(g-.) by discharging iirearms, or by riotous or dis- 
orderly condiict in any street or highway, wantonly or 
maliciously disturb the peace and quiet of the inmates of 
any dwelling house near such street or highway, — 

{h.) tear down or deface signs, break windows, ^oors 
or door plates, or the walls of houses, roads or gardens, 
or destroy fences, — 

{{.) ^ being common prostitutes or night walkers, 
wander in the fields, public streets or highways, lanes 
or places of public meeting or gathering of people, and 
do not give a satisfactory account of themselves, — 

{J.) are keepers ^ or inmates of disorderly houses, bawdy 
houses or houses of ill-fame, or houses for the resort of pros- 
titutes, or persons in the habit of frequenting such houses, 
not giving a satisfactory account of themselves,' — or 

(k.) " having no peaceable profession or calling to 

' A licensed carter who, contrarj' to a city ordinance, loiters on the street near the 
entrance of a hotel in the City of Montreal and solicits passengers to hire his cab, but 
who does not obstruct passengers, is not within this provisi jn ; Smith v. It., 4 M. L. R.> 
325. 

- Being drunk is not an o£fence within clause (/'.). The offence consists in causini^a 
disturbance by being drunk ! Ex parte DenpaticQL.'S. 387; It. v. Mi/j/, 24 C. L. J. 157. 

^ As to the neces^sity of there being evidence of place or circumstance to such impro- 
priety of purpose and failure to give a satisfactory account of herself, see It. v. Arscott, 
9 0. R. 541. 

■•See R. S. C. c. 176, ss. 3(/), 11, and as to whether or not a substantive offence is 
thereby created ; It. v. Clark, 2 0. R. 523 ; iZ. v. Flinl, 4 0. R. 214. A husband and wife 
may be jointly convicted of keeping a house of ill-fame. The keeping has to do with the 
management of the house, not the ownership thereof ; R. v. Warren, 16 0. R. 590. As to 
evidence of keeping, see R. v. Newton, 11 Ont. P. R. 101. 

'' The words " not giving a satisfactory account of themselves," do not apply to the 
keepers of disorderly houses, but to the frequenters thereof ; Arscott v. Lillty, 11 0. R. 181 ; 
R. V. Remon, 16 Q. R. 560, over-ruling R. v. Arscott, 9 0. R. 541. 

" It will not be inferred from tlio fact that the defendant has no peaceable profession 
or calling, and that he consorts with thieves, that ho maintains himself by crime ; R. v. 
On;aM,110nt. P.R. 497. 



THE CRIMINAL LAW. 189 

maintain themselves by, for the most part support them- 
selves by gaming or crime, or by the avails of prostitu- 
tion. 

Every loose, idle or disorderly person or vagrant is 
liable, on summary conviction before two justices of the 
peace to a fine not exceeding fifty dollars or to imprison- 
ment, with or without hard labor, for any term not 
exceeding six months, or to both. 

Abticle 251. 
loitering near ships. 

* Every one who is found loitering near any ship, and 
who does not give a satisfactory account of his business 
there, is liable, on summary conviction, 

(a.) to a penalty not exceeding one hundred dollars and 
not less than fifty dollars, and to imprisonment, with 
hard labor, for a term not exceeding twelve months and 
not less than three months, if he is unarmed at the time 
he is so found loitering ; and 

{h.) if at such time he is armed ^ to imprisonment for a 
term not exceeding three years and not less than two 
years. 

1 R. S. C. 0. 74, s. 87. 

- Armed with or carrying about his person any pistol, gun or other firearm or oGTensiTe 
Weapon. 



190 



A DIGEST OF 



* 



PART V. 



OFFENCES AGAINST THE PEESON, THE CONJUGAL 
AND PARENfTAL RIGHTS, AND THE REPUTATION 
OF INDIVIDUALS. 



CHAP. XXII. — Cases in ^vnIaI In- 
FLicnoN OP BoDiiA' Injcry is 
NOT Criminal. 

CHAP. XXIII.— Of Culpable Neg- 
ligence AND OF Duties TENDING 
TO THE Preservation op Life. 

CHAP. XXIV.— HoMiciDa 

CHAP. XXV. — Murder — Man- 
slaughter — Attempts to Com- 
mit Murder — Concealment op 
Birth. 

CHAP. XXVI.— Bodily Injuries 
and Acts and Omissions causing 
Danger to the Person. 



CHAP. XXVIL— Assaults— Kin- 

NAPI'ING — OuSTRUCTING OFFICERS 

AND Others in the Execution 
op their Duty. 

CHAP. XXVIIL— Rape— Carnal- 
ly KNOWING Children — Abor- 
tion. 

CHAP. XXIX— Crimes Affecting 
Conjugal and Parental Rights 
— Bigamy — Abduction . 

CHAP. XXX.— Offences against 
Children by Parents and 
Others. 

CHAP. XXXI.— Libels ON Privatb 
Persons. 



CHAPTER XXIL 

CASES IN WHICH INFLICTION OF BODILY INJURY 
IS NOT CRIMINAL. 

^ Article 252. 



EXCEPTIONS TO REST OF PART V. 

[The contents of Part V. are to be taken to be subject 
to the provisions contained in this chapter. 

• [Appendix. Note VII. See also 3 Iiist. Cr. Law, ch. xxvi. and xsvii. pp. 1-120.] 
' S. 1). Art. 196. 



THE CRIMINAL LAW. 191 



- 'Article 253. 

execution of lawful sentences. 

^ [The intentional infliction of death or bodily harm is not 
a crime when it is done in the execution, in the manner 
prescribed by law by a person whose duty it is to execute 
it, of a lawful sentence duly passed by a competent court. 

A court which, but for some formal defect in its autho- 
rity or in its proceedings, would have had jurisdiction to 
pass a sentence, is deemed for the purposes of this Article 
to be a competent court ; but a court which has by law 
no jurisdiction at all over the case in w^hich sentence is 
passed is not deemed to be a competent court, and a mis- 
taken belief on the part of the judge, or of the officer who 
executes the sentence, that it is competent, does not justify 
or excuse his act. • 

Illustrations. 

(1.) ^ A sits under a commission of paol delivery. The officer forgets to 
adjourn lite court at the end of the first day's sitting. This determines 
the commission. On the following day A sits again, and sentences a 
felon to death, who is duly executed hy B. Neither A nor B is guilty of 
murder or manslaughter, thouj!;h the i)roceeding8 are irregular. 

(2.) * A, a lieutenant or other having commission of martial autliorii^ 
in time of peace, causes B to he hanged by C by color of martial law. 
This is murder in both A and C. 



' S. D. Art. 197. 
11 Hale. P. C. 497 ; Foster, 267 ; 1 Hawk. P. C. 80 ; 1 Kast, P. C. 332-4. These author- 
ities contain (inter alia) discussions as to varying tbo form of punishment (as by substi- 
tuting beheading for hanKing) little likely to bo of praotical value. Draft Code.ss. 25, 28.] 

■' l',r Lord Halo, 1 Hale, P. C. 4'.Kt. 

■* Coke, .3rd Inst. 52 ; 1 Halo P. C. 499, 500. The whole subjectof martial law underwent 
full discussion in connection with the execution of Mr. Qurdon by a court martial in 
•laraiiicu in 1805. An elaborate history of the case has been published by Mr. Finlason, 
and the charge to tho grand jury, delivered at the Ccn'ral Criminal Court by the Lord 
Chief Justicu of England, has been published in a separate form. I know not whether 
the charge to tho grand jury of Middlesex, delivered by Lord (then Mr. Justice) Itlack- 
burn has been published or not. Much information on tho subject will bo found in 
Forsyth's Cases and opinions on Constitutional i<aw, pp. 4^4-563. Mr. Forsyth prints, 
intir (dill, an opinion given by tho late Mr. Edward James, Q.C.i and myself, in 18*30. Se9 
pp. 65:-563 ; and see Phillips v. Ei/re, L. R. 6 Q. B. 11.] 



Ill A DIGEST OF 



^Article 254. 

suppression of riots. 

[The intentional infliction of death or bodily harm is 
not a crime when it is done either by justices of the peace, 
peace officers, or private persons, whether such persons 
are, and whether they act as, soldiers under military dis- 
cipline or not for the purpose of suppressing a general 
and dangerous riot which cannot otherwise be suppressed. 

•'' Article 255. 

prevention of the commission of crimes and arrest 

of criminals. 

The intentional infliction of death or bodily harm is 
not a crime when it is done by any person 

* in order to prevent the commission of treason, 
murder, burglary, rape, robbery, arson, piracy or any 
other felony in which the traitor, felon, or pirate so acts 
as to give the person who kills or wounds him reason- 
able ground to believe that he intends to accomplish his 
purpose by open force ; 

'^ or in order to arrest a traitor, felon, or pirate, or retake 

1 S. D. Art. 198. 

- [See the oharKe of Tindal, C. J., to the grand jury of Bristol in 1832, printed in a note to 
B. V. Plnnei/, 5 C. & P. 26!, and quoted and approved in Phillipx v. liyre, L. R. 6 Q. B. 15 
(Court of Exchequer Chamber). The proper course in such cases is for the civil magis- 
trate to direct and control what is done, but this is not absolutely necessary. The Riot 
Act (R. S. C. c. 147, 88. 1-3), 1 Oeo. 1, st. 2, c. 5, (see Article 85) authorizes in express terms 
the dispersion of rioters wiio continue riotously assembled together for more than an hour 
after the proclamation made, and inderanilios the persons concerned if any of the rioters 
should bo killed ; but this Act appears to be narrower than the common law as laid down 
by Tindal, 0..T. See Draft Code, ss. 49-50.] 

»S. D. Art. 199. 

* [Coke, 3rd Inst. 55 ; 1 Hale. P. C. 486-7 ; Foster, 273 (more fully and satiifactorily) ; 
1 Hawk. P. C. H2 (rather confusedly) ; 1 East, P. C. 271-4 (best and most fully stated) ; 1 
RusB. Cr. 5th cd. 845-52 (taken substantially from East). Piracy is not mentioned by 
the authorities, but see 8 (leo. 1, u. 2(, s. 6, (Article 141.) Draft Code, s. 64. 

'' Coke, 3rd Inst. 5i) ; 1 Hale, P. C. 499 ; 1 Hawk. P. C. 81 ; Foster, 27C-1 ; 1 East P. 0. 
298-3U2. Draft Code, ss. 82-10.] 



THE CRIMINAL LAW. 193 

[or keep in lawful custody a traitor, felon, or pirate who 
has escaped, or is about to escape, from such custody, 
although such traitor, felon, or pirate offers no violence 
to any person ; 

' or, when it is done by a constable, or other officer of 
justice, in order to execute a warrant of arrest for treason 
or felony, which cannot otherwise be executed, although 
the person named in the warrant offers no violence to 
any person ; 

provided, in each of the said cases, that the object for 
which death or harm is inflicted cannot be otherwise 
accomplished. 

i 

^ Aeticle 256. 
^ private defence. 

The intentional infliction of death or bodily harm is 
not a crime when it is inflicted by any person in order to 
defend himself or any other person from unlawful 
violence, provided that the person inflicting it observes 
the following rules as to avoiding its infliction and inflicts 
no greater injury in any case than he in good faith, 
and on reasonable grounds, believes to be necessary when 
he inflicts it : — 

(a.) * If a person is assaulted in such a manner as to 
put him in immediate and obvious danger of instant 
death or grievous bodily harm, he may defend himself on 
the spot, and may kill or wound the person by whom he 
is assaulted ; 

' [Coke, 3rd Inst. 55 ; 1 Halo. P. C. 490 ; 1 Hawk. P. C. 81; 1 East P. C. 298-3:2. It 
mu.at be observed that this Article is oonflned to the intentional infliction of death or 
bodily injury. If the death or injury is not an intended or probable consequence of the 
act the CAse is provided for under Articles 26C, 278.] 

-S. 1). Art. 200. 

" [See Draft Code, ss. 66-65. 

* Coke, 3rd. Inst. 55; 1 Hale,P. C. 482; 1 Hawk. P. C. 82; Foster, 273-6; 1 Rugs. Cr. 
849, This nuso is so nearly co-extensive with the first case mentioned in the last Article 
that East does not notice them separately. Cases, however, may be imagined in which 
a sudden and violent assault would be no crime, and yet might be resisted by killing the 
assailant: see Illustration (I). ] 





194 A DIGEST OF 



,, [(6.) Mf a person is unlawfully assaulted, 

. (i.) in his own house ; <- ,v-,^ir «, • ,. t 

• (ii.) ^ in the execution of a duty imposed upon him by 

law ; 
(iii.) ^ by way of resistance to the exercise of force 

which he has by law a right to employ against 

the person of another ; 
he may defend himself on the spot, and may use a degree 
of force for that purpose proportioned to the violence of 
the assault, and sufficient (in case iii.) to enable him not 
ouly to repel the attack made upon him, but to effect his 
original purpose ; but a person using force in the execu- 
tion of a duty imposed upon him by law, or in order to 
effect a purpose which he may by law effect in that 
manner, and not being assaulted, is not entitled to strike 
or hurt the person against whom he employs such force, 
merely because he is unable otherwise to execute such 
duty or fulfil such purpose, except in the cases provided 
for in Article 255. 

(c.) ^ If a person is unlawfully assaulted by another 

' Staundforde, I4a ; Coke, 3rd Inst. 5G ; 1 Halo, P. C. 476, &o. ; 1 Hawk. P. C. 87 ; Foster, 
275-6 ; 1 Bust P. C. 279-80. 

-[In .addition to the authorities in the la«t note, see 1 East, P. C. 287, 307 ; 1 Hale, 
P. C. 480.] 

■' See the authorities quoted for claus>er, (a), (6.) and (c.), and eppecially 1 Hale, P. C. 
4*1. The qunlificiition at the end of this rule is founded on the doctrine that any one 
mny lawfully prevent orpuppress by force a breach of the penci or iifFrny (1 Hiiwk. P. C. 
489 ; J{. V. Omier, 6 East, 308), fro'n which it would seem to follow that a man who is 
himself assaulted may arrest his assailant, and on the doctrine that son agmnit dememie 
is a good defence to an indictment for assault (I Hawk. P. C. lUO. If this were not the 
law it would follow that any ruffian who ohoo.'io to assault a (|uiot person in the street 
uiiRht impose upon him the leital duty of runnintf away,oven if he were the stronger man 
of tho two. Ttiu passage of Halo appears to mo to bo applicable only to cases where 
deadly weapons are produced by way of bravado or intimidation, a case which no doubt 
olten occurred when people habitually carried arms and used them on veryslight prov- 
ocation. In such a ca^e it might reasonably be rei^arded as the duty of the person 
ni^saulted to retreat rather than draw his own sword, l)ut I cannot think that Hale meant 
to say that a man who in such a c^Lse closed with his assailant and took hissword from him 
would be acting illegally, or that if in doing so tho assailant were thrown down and 
acoidently killed by the fall tho person causing his death would be guilty of felony. 
The minuteness of tho law contained in the authorities on which this Article is founded 
is a curious relio of a time when police was lax and brawls frequent, and when every 
gentleman wore arms and was supposed to be familiar with the use of thom. It might, I 
think, be simplified in the present day with advantaKO.j 



THE CRIMINAL LAW. 196 



[without any fault of his owu, and otherwise than in the 
cases provided for in clauses (a.) and (6.), but with a deadly 
weapon, it is his duty to abstain from the intentional in- 
fliction of death or grievous bodily harm on the person 
assaulting, until he (the person assaulted) has retreated as 
far as he can with safety to himself. 

But any person unlawfully assaulted may defend him- 
self on the spot by any force short of the intentional 
infliction of death or grievous bodily harm ; and if the 
assault upon him is notwithstanding continued, he is in 
the position of a person assaulted in the employment of 
lawful force against the person of another. 

{d.) ' If two persons quarrel and fight neither is re- 
garded as defending himself against the other until he 
has in good faith fled from the fight as far as he can, but 
if either party does in good faith flee from the fight as far 
as he can, and if, when he is prevented, either by a natural 
obstacle or any other cause of the same nature, from flying 
farther, the other party to the fight follows and again 
assaults him, the person who has so fled may defend him- 
self, and may use a degree of violence for that purpose 
proportioned to the violence employed against him. 

' ' IlluHrationf. 

(1.) '^ A, a madman, violently attacks B in such a manner as to cause 
instant danger to B's life. B may kill A, though A is not committing any 
crime. 

(2.) '■^ A, an officer, has a warrant to arrest B on civil process. B flies. 
A overtakes him, and B assaults A. A may use any degree of violence 
to B necessary to repel his assault and to arrest him. 

(3.) * A, a trespasser, enters B's house and refuses to leave it. B has a 
right to remove A by force, but not to strike liim even if he cannot other- 
wise got him out of the liouse. If on the application of such force A 
assaults B, B may use any degree of force necessary to defend himself and 
to remove A from the house. 



' [See the niithnritie!< for clause (6). 

- This seems to follow dirootly from the authorities cited. So, if A were under a mil- 
take of fact which B h.od no time to explain, -,:,^-,t»^ 

" 1 East, P. C. 307. 
* 1 Hale, P. C. 486.] 

o2 



196 A DIGEST OF 



^ Article 25*7. 

lawful force. 

^ [It is not a crime to inflict bodily harm by way of 
lawful correction, or by any lawful application of force 
(other than those hereinbefore mentioned) to the person 
of another ; but if the harm inflicted on such an occasion 
is excessive the act which inflicts it is unlawful, and, 
even if there is no excess, it is the duty of every person 
applying the force to take reasonable precautions against 
the infliction of other or greater harm than the occasion 
requires. 

Illustrations. 

(1.) ^ A, a schoolmaster, beats B, a scholar, for two hours with a thick 
stick. Such a beating is unlawful. 

(2.) * A kicks B, a trespasser, out of his house, in order to force him to 
leave it. B is killed. The kick is an unlawful act. 

(3.) (Submitted.) * A, the governor of a gaol, flogs B, a criminal, under 
the sentence of a court. It is A's duty to cause the surgeon of the gaol to 
be in attendance to see that no unintended injury is inflicted on B. 

"Article 258. 

superior orders to employ force. 

In all cases in which force is used against the person of 
another, both the person who orders such force to be used 
and the person using that force is responsible for its use, 
and neither of them is justified by the circumstance that 

'S. D. Art. 201. 

-[It would be inconsistent with the plan of this worl< to try to enumerate all the cases 
in which force may be lawfully applied to the person of another. In 1 Russ. Cr. 767-73, 
oases will be found as to excessive violence in executing legal process '.R. v. HugginitStT. 
882, p. 872. Pressing for the sea service {p. 768). Captains in the merchant service: II. 
V. Leggetts, 8 C. & P. 191 (p, 773). Correction of children and servants (773-7). See Draft 
Code, 8. 66.] Mitchelly. Dories, 2 U. C. Q. B. 430; Belch v. Aniott, 9 U. CO. P. 68; 
The Bridgetealer, 6 Q. L. R. 29(» ; J{. v. Fanetif, 5 L. C. J. 167 ; I{. v. Stotee, 2 G. & 0. 121. 

'■'Ui. v. Hoplcv, 1 Russ. Or. 776; 2 F. & F. 202. 

* WUd'a Case, 1 Russ. Cr. (5th ed.) 687; 2 Lewin, 214.] 
"See Art. 11; 

* S. 1). Art. 202. 



THE CRIMINAL LAW. Wl 

[he acts in obedience to orders given him by a civil or 
military superior, but the fact that he did so act, and the 
fact that the order was apparently lawful, are in all cases 
relevant to the question whether he believed, in good 
faith and on reasonable grounds, in the existence of a 
state of facts which would have justified what he did 
apart from such orders,' or which might justify his supe- 
rior oflBcer in giving such orders. 

Illustrations. • 

(1.) " A, a marine, is ordered by his superior officer on board a man-of- 
war to prevent boats from approaching the ship, and has ammunition 
given him for that purpose. Boats persisting after repeated warnings in 
approaching the ship, A fires at one and kills B. This is murder in A 
although he fired under the impression that it was his duty to do so, as 
tlie act wai" not necessary for the preservation of the ship (though desir* 
able for the maintenance of discipline). 

(2.) ''A, the driver of an engine, orders B, the stoker (whose duty it is 
to obey his orders), not to stop the engine. The train runs into another 
in consequence, and C is killed. B is justified by A's order. 

(3.) * (Submitted). A, a civil magistrate, directs B, a military officer, to 
order his men to fire into a mob. B gives the order, it is obeyed, and 
C, a common soldier, shoots I) dead. The question whether A, B, and C 
respectively committed any ofience depends on the question wliether each 
of them respectively had reasonable grounds to believe, and did in fact 



• [As to this see 1 Hist. Cr. Law, 205. 

2 if. V. r/(om(M, 1 Russ. Or. 732 ; 4 M. it S. 441. 

' R. V. Tmincr, 4 F. k F. 105; I Rusj. Or. (5t(i ed.) 837, 83S. Tho language of Willes, 
J., in this case seems to be a little too wide, unless it is taken in connection with the 
particular facts. 

' Whether C would commit a military offence if he refused to obey B's order because 
he rightly thought it unreasonable, is a question which would have to be decided by a 
court martial. I should suppose that cases might be imagined in which even a court 
martial would hold that a military inferior might and ought to disobey orders on the 
ground of their illegality. An officer, t>.(7., who commanded his men to fire a volley 
down Fleet Street when there was no appearance of "a disturbance, or to shoot a child of 
four years old runnins away during a riot, or to desert to tho enemy, or to shoot a supe- 
rior officer, ought to be disobeyed, and I suppose that ii soldier who obeyed such an order 
might be punished by a court martial. That such acts as shooting peaceable people 
wantonly, or a child of four years old intentionally, even in a riot, would bo murder as 
well in tho soldier as in the officer cannot bo doubted. If so, it seems impossible to sug- 
gest any other principle as to tho effect of superior orders than tho one mentioned in the 
text. It is indeed essential to the maintenance of the supremacy of the common law 
over military force.] 



198 A DIGEST OF 



[believe in good faith, either that what they did was ne-v^sary to suppress 
a dangerous riot, or in the case of B, that A, or in the case of C, that B, 
had reasonable grounds to believe, and did believe, that the order given 
was necessary to suppress a dangerous riot. A's direction to B, and B's 
order to C, would not necessarily justify B or C in what they did, but 
would be facts relevant to the question whether they believed upon rea- 
sonable grounds as aforesaid. 



^Article 259. : •■ - 

consent to bodily injury. 

The consent of a person killed or maimed to the inflic- 
tion of death or bodily harm, affects the criminality of 
such infliction to the extent defined in Articles 260-265, 
both inclusive. In each of these Articles the word 
" Consent " means a consent freely given by a rational 
and sober person so situated as to be able to form a 
rational opinion upon the matter to which he consents. 

Consent is said to be given freely when it is not procured 
by force, fraud, or threats of whatever nature. 



^Article 260. 

right to consent to bodily injury for surgical 

purposes. 

Every one has a right to consent to the infliction of 
any bodily injury in the nature of a surgical operation 
upon himself or upon any child under his care, and too 
young to exercise a reasonable discretion in such a matter, 
but such consent does not discharge the person perform- 
ing the operation from the duties hereinafter defined in 
relation thereto. 

> S. D. Art. 203. 
« S. D. Art. 204. 

'[I know of no authority for these propositions, but I apprehend they require none. 
The existonoo of surgery as a profession assumes their truth.] 



THE CRIMINAL LAW. 199 

'Article 261. 

surgical operation on person incapable of assent. 

[(Submitted.)^ If a person is in such circumstances as 
to be incapable of giving consent to a surgical operation, 
or to the infliction of other bodily harm of a similar nature 
and for similar objects, it is not a crime to perform such 
operation or to inflict such bodily harm upon him without 
his consent or in spite of his resistance. 



Illustrations. 

(1.) A is rendered insensible by an accident which renders it necessary 
to amputate one of his limbs before he recovers his senses. The amputa- 
tion of his limb without his consent is not an oflFence. 

(2.) If the accident made him mad, the amputation in spite of his 
resistance would be no otfence. 

(3.) B is drowning and insensible. A, in order to save his life, pulls B 
out of the water with a hook which injures him. This is no offence. 

"^ ^Article 262. 

right to consent to bodily injury short of maim. 

* Every one has a right to consent to the infliction upon 
himself of bodily harm not amounting to a maim. A 
maim is bodily harm whereby a man is deprived of the 
use of any member of his body or of any sense which he 
can use in fighting, or by the loss of which he is gener- 
allv and permanently weakened, but a bodily injury is 
not a maim merely because it is a disfigurement. 

Illustration. 

(1. ) It is a maitii to strike out a front tooth. It is not a maim to cut off 
a man's nose. Castration is a maim. 



•S. D. Art. 205. 

MOraftCode.a. 67.] 

'S. D. Art- 206. 

* [The positive part of this Article is proved thus :— Injuries short of maims are not 
criminal at common law unless they are assaults, but an assault is inconsistent with con- 
sent. As to the definition of a maim, see 1 Hawk. P. C. 107. He expressly mentions 
castration.] 



200 A DIGEST OF 



^ Article 263. » , 

no right to consent to infliction of death. 

^ [No one has a right to consent to the infliction upon 
himself of death, or of an injury likely to cause death, in 
any case (other than those mentioned in Article 260), or 
to consent to the infliction upon himself of bodily harm 
amounting to a maim, for any purpose injurious to the 
public. • 

Illustrationi*. 

(1.) •■' A and B agree to fight a duel together with deadly weapons. If 
either is killed or wounded his consent is immaterial. 

(2.) * A gets B to cut off A's right hand, in order that A may avoid 
labor and be enabled to beg. Both A and B commit an offence. 

^ Article 264. 

no right to consent to injury constituting a breach 

of the peace. 

^ No one has a right to consent to the infliction of 
bodily harm upon himself in such a manner as to amount 
to a breach of the peace, or in a prize fight or other 
exhibition calculated to collect together disorderly per- 
sons. 

1 S. D. Art. 207. ' 

- [Draft Code, s. 69. 

^It.v.Barronei, Dear. 51. The law hns never, I believe, been dif^puted. It is also 
immaterial whether the duel is oris not what is called fair. Soe, too, authorities as to 
suicide, Article 2.'i3. 

* 1 Inst. 107 a, b. I think the qualification in the Article," for any purpose injurious to 
the public," must bo supplied. It seems absurd to say that if A gets a dentist to puUout 
a front tooth of A's because it is unsightly, though not diseased, A and the dentist both 
commit a misdemeanor. AVhen it was an essential part of a common soldier's drill to 
bite cartridges I believe that it was not an uncommon military offence to get the front 
teeth pulled out, and this would, I presume, be an oifence at common law also,] 

t^S. D. Art. 208. 

« [Foster, 260: 1 East P. C. 270 ; li. v. Billingham, 2 C. & P. 234; Ji. v. Perkim.iC 
& P. 537 ; Ji. V. Coney, L. R. 8 Q. B. D. 531.] 



THE CRIMINAL LAW. 201 

' Article 265. 

consent to be put in danger. 

^ [It is uucertain to what extent any person has a right 
to consent to his being put in danger of death or bodily 
harm by the act of another. 

Illustration. . 

(1.) A, with B's consent, wheels B in a barrow along a tight rope at a 
great height from the ground. C hires A and B to do so, D, E, and Fpay 
money to C to see the performance. B is killed. 

Qiuvre, are A, C, 0, E, and F, or any and which of them, guilty of man- 
slaughter ? 

^Article 266. 

accidental infliction of bodily injury by lawful 
act — what acts are lawful. ' 

* It is not a crime to cause death or bodily harm acci- 
dentally by an act which is not unlawful, unless such 
act is accompanied by an omission, amounting to culp- 
able negligence as defined in Article 26*7, to perform a 
legal duty imposed either by law or by contract on the 
person who does the act. 

An effect is said to be accidental when the act by 
which it is caused is not done with the intention of 
causing it, and when its occurrence as a consequence of 
such act is not so probable that a person of ordinary 
prudence ought, under the circumstances in which it is 
done, to take reasonable precautions against it. 

' S. D. Art. 209. 

- [There is, so far as I know, no authority on this point, but the principle on which 
prize fights have been held to be illegal might include such a case. Such an exhibition 
might also under circumstances be a public nuisance. To collect a large number of 
people to see a man put his life in jeopardy is a loss coarse and boisterous proceeding 
than a prizefight, but is it less immoral ?] 

^S.D.Art. 210. 

♦ [1 Hale, 471, &o. ; Foster, 258 ; 1 Ea*t, P. C. 260; 1 Russ. Cr. (5th ed.) &14. I cannot 
give any precise authority as to acts Involving penalties.] 



202 A DIGEST OF 



[The words " unlawful act " include — 

(i.) acts punishable as crimes [or involving penalties] ; 

(ii.) ' acts constituting actionable wrongs ; 

(iii.) ^ acts contrary to public policy or morality, or 
injurious to the public. 

Other acts are not unlawful within the meaning of 
this Article, though they may involve private im- 
morality. 

Jlluntrations. 

(1.) ' A, a Bchoolmaster, corrects a scholar in a manner not intended or 
likely to injure him, using due care. The scholar dies. Such a death is 
accidental- 

(2.) * A turns B, a trespasser, out of his house, using no more force than 
is necessary for that purpose. B resists, but without striking A. They 
fall in a struggle and B is killed. Such a death is accidental. 

(3.) * A, a workman, throws snow from a roof, giving proper warning. 
A passer-by is nevertheless killed. Such a death is accidental. 

(4.) ^ A takes up a gun, not knowing whether it is loaded or not, points 
it in sport at B and pulls the trigger. B is shot dead. Such a death is not 
accidental. If A had had reason to believe that the gun was not loaded, 
the deatli would have been accidental, although he had not used every 
possible precaution to ascertain whether the gun was loaded or not 

(5.) * A seduces B, who dies in her confinement. The seduction, though 
an immoral, is not an unlawful act, within the meaning of this Article.] 



• [lllusj!. Cr. 812-21, for cases ; see especially the summing up of Tindal, C. J., in 1 Lew. 
179; 1 Russ. Or. 817. Halo, East, and Foster make a distinction between main in se and 
viala prohibita, which I think can no longer be regarded as law. 

'^ See authorities for Article 264. 

" 1 Hale, 473. The same law of course applies to all oases of lawful correction. It 
would also, I think, apply to Illustration (2), and to all other cases in which force is law- 
fully applied by one person to the person of another. It is, of course, impossible in a work 
like this to attempt an enumeration of those cases. 

* Founded on Foster, 262. 

^ Founded on Foster, 263. In one of the cases referred to in Foster, the prisoner was 
convictedof manslaughter, although he had tried the pistol with the rammer. Poster, 
with reason, thinks this " an extremely hard oiso." Dixon v. Bell, 5 M. & S. 198, may be 
taken as illustrating the line between negliitence, for which a man is civilly, and negli- 
gence for which he is criminally, responsible. Aln this caae h-id caused the priming to be 
taken from a loaded gun, and loft it in a place where a little girl playing with it shot a 
little boy. The boy recovered damages against A, but if he had died I do not think A 
would have been guilty of felony. The case is juat on the line. 

" No one ever suggested that this would be manslaughter, but it exactly marks the 
distinction between illegality and immorality.] 



THE CRIMINAL LAW. 208 



CHAPTER XXIII. 

OF CULPABLE NEGLIGENCE AND OF DUTIES TENDING TO 
THE PRESERVATION OF LIFE. 

^Article 267. 

death or bodily injury caused by omission to 
discharge a legal duty. 

^ [Every one upon whom the law imposes any duty,^ or 
who has by contract ^ or by any wrongful act taken upon 
himself any duty, tending to the preservation of life, and 
who neglects to perform that duty, and thereby causes 
the death of any person, commits the same offence as if 
he had caused the same effect by an act done in the state 
of mind, as to intent or otherwise, which accompanied 
the neglect of duty. 

Provided, that no one is deemed to have committed a 
crime only because he has caused the death of or bodily 
injury to another by negligence which is not culpable. 
What amount of negligence can be called culpable is a 

1 S. D. Art. 211, 

^ [The first part of this Article is illustrated by all the lUus'rationsof the other Arti- 
cles in the chapter. The whole subject is treated at great length in Wharton on Homi- 
cide, chapter iv. s. 72, p. 160. Dr. Wharton classifies negligent homicide under the fol- 
lowing heads (generalities apart) : 

1. Use of dangerous things. 6. The care of children, <fec. 

2 Dropping things on roads. 7. The care of medical men. 

3. Management of railroads and steamers. 8. Dangerous machinery. 

4. Riding and driving. 9. Athletic sports. 

5. The care of dangerous animals. 10. Conclusion. 

I have carefully gone through the whole chapter, and I think the wti^-le of it is only a 
set of illustrations of the principles stated in this and in the concluding Articles of the 
preceding chapter. It should be observed that the word "negligence" excludes inten- 
tion. The very slightest omission of caution in order to cause death, would constitute 
malice aforethought, if death were caused thereby. 

=< Draft Code, s. 164.] 

* A mere promiset it appears, is not sufficient ; ex parte Brydgea, 18 L. C. J. 141. 



204 A DIGEST OF 



[question of degree for the jury, depending- on the cir- 
cumstances of each particular case. 

Provided, also, that no one is deemed to have com- 
mitted a crime by reason of the negligence of any servant 
or agent employed by him. 

* Provided, also, that it must be shewn that death not 
only follows but is also caused by the neglect of duty. 

Illmlrations- 

(1.) ' It is A'g duty, by contract, as the banksman of a colliery shaft, to 
put a stage on the mouth of the shaft in order to prevent loaded trucks 
from falling down it. A omits to do so either carelessly or iuteutioually- 
A truck falls down the shaft and kills B. A is in the same position as if 
he had pushed the truck down the shaft carelessly or intentionally. 

(2.) •' A slings a cask in a manner which is reasonably sufficient for 
public safety. The cask slips and kills B. A is not criminally responsible 
merely because he omitted to take further precautions. 

(3.) * A leaves an unloaded gun leaning against a wall in a friend's 
room. In his absence B loads it and l«aves it loaded where he found it 
A points it in sport at C and pulls the trigger. The gun goes off and kills 
C. A is not criminally responsible merely because he did not examine 
the gun before he pulled the trigger. 

(4.) ^ A, the captain of a steamer, sets B to keep a look out. B fails to 
do so, whereby the steamer runs down a smack and drowns C. A is not 
criminally responsible for B's omission to look out. 

(5.) " A, acting us a surgeon, physician, or midwife, causes the death of 
a patient by improper treatment, arising from ignorance or inattention. 
A is not criminally responsiblo, unless his ignorance, or inattention, or 
rashness is of such a nature that the jury regard it as culpable under all 
the circumstances of the case. It makes no diHierence whether A is or 
is not a properly qualified pnictitioner. 

(6.) ' A, by his servants, makes fireworks in his house contrary to the 
provisions of an Act of Parliament. The servants by culpable nei^ligence 
cause an explosion which kills B. A is not criminally responsible for B's 
death. 



1 [niustriition (7). 

- Ji. V. IIu!/h>a, D. & U. 248. 

" I{ in mi 14 It'll' n Caw, 1 Low. 180. Probably in suoh a case there would be a civil liability; 
8oe Bui-n,- V. Bondle, 2 II. k C. 722. 

< Foster, 2(f5. 

" It. V. Allen, 7 0. A P. 153 ; /;. v. (ireen, 7 C. & P. 156. _ _^_ 

« n. V. Van Bulvhell, .' C. & P. U2J ; fl. v. St. John Long (Igt case), 4 C. & P. 308 ; (2d ewe) 
4 C. A P. 423 ; R. V. Vt'lllumuon, 3 C. ifc P. 036. 

^ Benntit'i Case, Bell, 0. C. 1.] -—7- " ~~ T~ " 



THE CRIMINAL LAW. 205 

[(7.) ^ A being under a legal duty to supply medical aid for his son B, 
who has confluent small-pox, refuses to do so from religious motives, and 
B dies. It must bo shewn that B's life would probably have been pro- 
longed if medical aid had been provided, before A can be convicted of 
manslaughter. 

''Article 268. 

causing death by omissions other th4n those 
mentioned in article 26t. 

^ It is not a crime to cause death or bodily injury, even 
intentionally, by any omission other than those referred 
to in the last Article. 

Illmiralion, 

(1.) A sees B drow^ning and is able to save him by holding out his hand. 
A abstains from doing so in order that B may be drowned, and B is 
drowned. A has committed no offence. 

* Article 269. 
duty to provide necessaries of life. 

® Every person under a legal duty, whether by contract 
or by lavv^, or by the act of taking charge, wrongfully or 
otherwise, of another person, to provide the necessaries 
of life for such other person, is criminally responsible if 
death is caused by the neglect of that duty, lud if the 
person to whom the duty is owing, is, from age, health, 
insanity, or any other cause, unable to withdraw himself 
from the control of the person from whom it is due, but 
not otherwise. 

Some of the duties of parents towards children and of 
masters towards apprentices are defined in Articles 307, 
338, 339.- 

' Ui. V. Morbv, L. R. 8 Q. B. D. 571.1 

" S. D, Art. 212. 

^ [li. V. Smith, 2 C. k P. 440. This Bubjoct is discussed in a striliinR manner by Lord 
Sdacaulny in hii) notes on the Indian Ponal Code ; see, too, Wharton on Homicide, § 72.] 

<S. D. Art.213. 

'■' [See oases in Illustrations. Some duties of this sort are imposed by statute. See Arti- 
cles 307, 338, 339. Draft Code, ss. 159-01.] 



A DIGEST OF 



Illuslrations. ~ ' ' ' 

[(5.) * A neglects to provide proper food and lodging for her servant, B, 
(wlio is of weak mind, but twenty-three years old). B's life is shortened 
by such neglect. A is criminally responsible if B was in such an en- 
feobled state of body and miml as to be helpless and unable to take care 
of herself, or was under tlie dominion and restraint of A, and unable to 
withdraw herself from A's control ; otherwise not. 

(2.) ^ B, a girl of eighteen, comes from service to the house of her 
mother. A, and is there confined of a bastard child. A does not provide 
a midwife, in consequence of which B dies. A ia not criminally respon- 
sible for this omission. 

(3.) ^ A persuades B, an aged snd infirm woman, to live in his house, 
and causes her death by neglecting to supply her pro{)erly with food and 
fire, she being incapable of providing for herself from age and infirmity. 
A is criminally responsible for his neglect 



^Article 2*70. 

delegation of dtjty defined in article 269. 

If a person delegates the discharge of the duty men- 
tioned in the last Article to his wife or to a servant, and 
supplies such wife or servant with the means of discharg- 
ing the duties so delegated, it is the legal duty of such wife 
or servant to discharge such duties, and it is the legal 
duty of the man who delegates them to use ordinary care 
to see that they are properly discharged. 

Illustration. 

* A, the sister of B's deceased wife, acts as B's housekeeper, and neglects 
to give to B's infant child food duly i)rovided hy B, and so causes its 
death. A is criminally responsible for this neglect. If B knew of A's 
neglect, and permitted her to continue it, ho also is responsible, but not 
otherwise. 



' in. V. Charlotte Smith, L. & C. 607, 
« H. V. Shepherd. L. k C. 147. 
" Ji. V. Maniotl, 8 C. & 1'. 425.] - 
♦ S. D. Art. 214. 



» [li. V. Uubb, i Cox, C. C. 467, 1 Russ. Or. 657; R. v. ITook, 4 Cox, 457 ; 1 Russ, Cr. 858.] 



THE CRIMINAL LAW. 207 



! . t. 



.. . ^i <i !,■:.,) j>-t ^Article 271. • • - 

WHEN DIRECT PERFORMANCE OF DUTY IMPOSSIBLE. 

" [It is the legal duty of a person who is unable to pro- 
vide for any person necessaries which he is legally bound 
to provide for him to make application to the proper 
authorities for parochial relief in cases in which such 
authorities are legally bound to furnish such relief. 

^ Article 272. 

duty of care in doing dangerous acts. ' 

* It is the legal duty of every one who does any act 
which without ordinary precautions is, or may be, 
dangerous to human life, to employ those precautions in 
doing it. • 

JlluMrations. 

(1.) •'' It is the duty of persons liavinj? charge of dangerous things, 
animals ur machinery, to take .:aro of tliem. 

(2.) ■■ Workmen are employed to throw snow oft' the roof of a house. It 
is th'jir duty to see whether people are passing, and to give warning 
before they throw it down. 

(3.) * It is the duty of people riding, driving, or sailing, to be careful. 

(4.) " A turns out a vicious hor.se to graze on a common on which people 
are likely to pass. It is his duty to take proper precautions against its 
injuring passers-by. 

(5.) ' A, B, and C went to practice with a rifle which carried a mile. A 



' S. D. Art. 215. 

- [ l{. V. MahhHl, 5 Cox. C. C 330 ; 1 Rugg. Or. t558.] 

•' S. D. Art. 216. 

Hllowfiir Clin it bo siiid to be a loeal duty to abstain from doing such acts wantonly 
even with prcoautions? Suppo.-<e a man, merely for liis own umusemciit or from caprice, 
took adaiiKorout* wild beast into a public street, usinKall proper precautions, and suppose 
the wild beast notwithstanding broke loose and killed some one, would tbis bo mau- 
slaiighter ? 1 know of no iiutliorily on tho subjoct. .See Draft Code. s. Ifi2. 

'• Cases collected in Wharton on Homicide, §§ 87-93, 5*9, 126, 107-24 ; and see 1 Russ. Cr. 
822-*. 

» H. V. Dnnt, L. & C. 507. 

' H. V. Salmon i<: Othero, L. R. 6 Q. B D 79. My judgment wan nearly in the terms of 
Article 272, and the other judgments were to the same efieot.] 



208 A DIGEST OF 



[handed a board to B, who in C's presence fixed it in a tree, and they all 
fired at it at a distance of 100 yards, taking no precautions to prevent 
mischief to persons in tlie neighborhood- One of the shots killed a boy 
in a tree about 200 yards behind the target. All were held guilty of man- 
slaughter. 

^ Article 21S. 

DUTY OF PERSONS DOING ACTS REQUIRING SPECIAL SKILL 

OR KNOWLEDGE. 

^ It is the legal duty of every person who undertakes 
(except in case of necessity) to administer surgical or 
medical treatment, or to do any other lawful act of a 
dangerous character, and which requires special know- 
ledge, skill, attention, or caution, to employ in doing it a 
common amount of such knowledge, skill, attention and 
caution.] 

1 S. D. Art. 217. 

2 Ui. V. St. John Long, 4 C. & P. 404. (Per Garrow, B.) As to caution see R. v. St. John 
Zonff, 2nd case, 4 C. it P. 440 ; see otheroases collected inlRuss- Cr. (5th ed.) -664-73. Draft 
Codes. 162.] 



THE CRIMINAL LAW. 209 



CHAPTER XXIV. 

homicide. 

* Article 2*74. 

homicide defined — when a child becomes a human 

BEING. 

^ [Homicide is the killiug of a human being by a human 
being. 

^ A child becomes a human being within the meaning 
of this definition, when it has completely proceeded in a 
living state from the body of its mother, * whether it has 
or has not breathed, '' and whether the navel string has 
or has not been divided, " and the killing of such a 
child is homicide, whether it is killed by injuries inflicted 
before, during, or after birth. 

^ A living child in its mother's womb, or a child in the 
act of birth, evtiu though such child may have breathed, 
is not a human being within the meaning of this defini- 
tion, and the killing of such a child is not homicide. 

^ Article ^''S. 
killing defined. 
^ Killing is causing the death of a person by an act or 

> S. D. Art. 218. 

» [Draft Code, 88. 165,166, 

« R. V. Poulton, 5 C. X- P. 329. 

*J{.v. Bmin,6C. & P. 349. 

» i?. V. Trilloe, Car. & Mar. 650. 

' Authorities collected, 1 Rui». Cr. (5th od). 646. 

' H. V. Enoch, 5 C. & P. 539, and see note to the case ; li. v. Wright, 9 C. & P. 764 ; B. v. 
&«.•», 7 C. A P. 850.] 

«S. D. Art.219. 

' [See Draft Code, as. 167-173. Dr. Wharton's work on Ilomicido contains an interestinsr 
and elaborate ohapter(ch. xii. §§ 358-389), entitled " Casual Connection," into which some] 

1» 



210 A DIGEST OF 



[omission, but for which the person killed would not have 
died when he did, and which is directly and immediately 
connected with his death. The question whether a given 
act or omission is directly and immediately connected 
with the death of any person is a question of degree de- 
pendent upon the circumstances of each particular case. 

(Submitted.) But the conduct of one person is not 
deemed for the purposes of this Article to be the cause of 
the conduct of another, if it affects such conduct only by 
way of supplying a motive for it, and not so as to make 
the first person an accessory before the fact to the act of 
the other. 

This Article is subject to the provisions contained in 
the next two Articles. 



[discussion is introduced on the distinction between causes and conditions: a distinction 
of which Dr. Wharton maintains, and of which Mr. Mill (sec his Logic, vol. i. p. 398,&c.> 
denies, the solidity. For practical purposes, I think the Article in the text is sufficient) 
and if this were the proper place, I should be disposed to discuss some of Dr. Wharton's 
positions. The latter part of the Article and the Illustration (6) intended to explain it, 
must, I think, be law ; but I know of no direct authority on the subject. The maxim 
" In Jure non remota cawm serl proxima fpcctatur" has nodoubt a bearing on the subject 
(see Bacon's Maxims, 35-9, and Broom's Maxin^s, 216-30), but it is very vague. Lord 
Bacon says itdoes not apply to " criminal acts except they have a full interruption." His 
illustration is, — A fires a piscolat B, and mi,«ses him, and runs away. B pursues A. A 
stabs B with a dagger. " If the law should consider the last impulsive cause, it should 
say it was in his own defence, but the law is otherwise, for it is but a pursuance and 
execution of the first murderous intent." Surely in this case the stab is the immediate 
cause of B's death ; A's state of mind is another matter, and is to be inferred from facts. 
The law as to accessories and incitement appears to show the limit to which participation 
in a crime can be carried. Unless the line is drawn there it is impossible to say how far 
it would extend. Illustration (0) is a prosaic version of Othello. lago, however, in Act 
iv. sc. 1, say.s when asked to give poi(-on, "Do it not with poison, strangle her in her bed." 
This would cleirly make him an accessory. To take a humbler instance, the catastrophe 
of Oliver Twist might, perhaps, fall within Illustration (6). In ch. xlvii. of that work, 
Fagin, after getting Sikcs to say he would murder any one who should betray him, 
wakes up Noah Ciaypole and makes him tell Sikes that the girl Nancy hud betrayed him, 
and, as Sikes rushes out in a passion, says, " You won't be too violent. Bill ; I mean not 
too violent for safety." I think that the whole conversation taken together would be 
evidence to go toa jury, that Fagin did " counsel " or " procure " the murder committed 
by Sikes, which would make him an accessory before the fact, but if he had ccnfincd 
himself to merely telling Sikes what Ciaypole said he had heard , it would not have been 
enough. After all there was only the uncorroborated testimony of an accomplice to 
prove what he said, and Ciaypole doer not seem to have been by when the most damaging 
words were spoken.] 



THE CRIMINAL LAW. 211 



Illmlrations. 

[(1.) ' A substitutes poison for medicine, which is to be administered 
to C by B. B innocently administers the poison to C, who dies of it. A 
has killed C 

(2.) '-' A gives a poisoned apple to his wife B, intending to poison her. 
B, in A's presence, and Avith his knowledge, gives the apple to C, their 
child, whom B did not intend to poison. A not interfering, C eats the 
apple and dies. A has killed C. 

(3.) •' A, an ironfounder, ordered to melt down a saluting cannon which 
had burst, repairs it with lead in a dangerous manner. Being fired with 
an ordinary charge, it bursts and kills B. A has killed B. 

(4.) * A, B, and C, road trustees under an Act of Parliament, and as 
such under an obligation to make contracts for the repairs of the road, 
neglect to make any c,ach contract, whereby the road gets out of repair, 
p' -^ D passing along it is killed. A, B, and C have not killed D. 

{b.) ^ A by his servants makes fireworks in a house in London contrary 
to the provisions of ajx Act of Parliament (9 & 10 Will. 3 c. 77). Through 
the negligence of his servants, and without any act of his, a rocket ex- 
plodes and sets fire to another house whereby B is killed. A has not 
killed B. 

(6.) A tells B facts about C in the hope that the knowledge of those 
facts will induce B to murder C, and in order that C may be murdered ; 
but A does not advise B to murder C ; B murders C accordingly. A has 
not caused C's death within the meaning of this Article. 

" Article 216. 

when an act is the remote cause of death or one of 

several causes. 

A person is deemed to have committed homicide, 
although his act is not the immediate or not the sole cause 
of death in the following cases — 

(a.) " If he inflicts a bodily injury on another which 
causes surgical or medical treatment, which causes death. 
In this case it is immaterial whether the treatment was 

1 [Donellan't Case. Seo my Gen- View, Or. L. 338. 
- Saunden' Caxe, 1 Hale, P. C- 436. 
» J?. V. fare, 8 C. & P. 163. 

*R. V. Pocock, 17 Q. B. 34. ___ ^ _„1^-.- '-'■ " 

fl. V. £enne«, Bell, C. C. 1.] " ' 

»S.D.Art.220. 

' [Hale, 418 ; Illustrations (1), (2). Draft Code, s. 173.] 

p2 



212 . A DIGEST OF 



Iproper or mistaken, if it was employed in good faith, 
and with common knowledge and skill, but the person 
inflicting the injury is not deemed to have caused the 
death if the treatment which was its immediate cause 
was not employed in good faith, or was so employed with- 
out common knowledge or skill. 

{b.) ^ If he inflicts a bodily injury on another, which 
would not have caused death if the injured person had 
submitted to proper surgical or medical treatment, or had 
observed proper precautions as to his mode of living. 

(c.) ^ If by actual violence or threats of violence he 
causes a person to do some act which causes his own 
death; such act being a mode of avoiding such violence 
or threats, which under the circumstances would appear 
natural to the person injured. 

{d.) ^ If by any act he hastens the death of a person 
fiufiering under any disease or injury which apart from 
such act would have caused death. 

(e.) ' If his act or omission would not have caused 
death unless it had been accompanied by the acts or 
omissions of the person killed or of other persons. 

Illustrations. 

(1) ^ A wounds B in a duel. Competent surgeons perform an operation 
whicli they in good faith regard as necessary. B dies of the operation, 
and it appears tliat the eurgeons were mistalien as to the necessity for 
the operation. A has killed B. 



' [Illustration (3). Draft Code, s. 172. 

-Illustration (4). Draft Code. s. 167. 

*1 Hale, 428; Illustration (5). Draft Code, s. 171.] Ai a practising physician, who 
kept a hospital for the sick, on three successive days forced the person of B, a patient 
then under his control in such hospital, she being in a condition of health that rendered 
sexual intercourse dangerous even with her consent. B died on the sixth day after the 
last occasion on which she had been ravished, and her death if not caused was hastened 
thereby. Held suflSeiont cv'deuce of murder to justify A's surrender under the Ashbur- 
ton Treaty ; In re Weir, 14 0. R. 389. 

* [See Illustrations (0) and (7). See also E. v. Lonohottom, 1 Russ. Cr. (5th ed.) 830 ;3 Cox, 
439. J{. V. Ledger, 1 Russ. Cr. (5th ed.) 835, 6 ; and Mr. Greaves' note. This case is a very 
peculiar one. 

' Ji. V. Pum, 1 Cox C. C. 339 ; 1 Russ. Cr. 702.] 



THE CRIMINAL LAW. 213 

[(2.) * A gives B a v/ound. C, a surgeon, applies poison to the wound, 
either from bad faith or by negligence. B dies of the poison. C and not 
A has killed B. 

(3.) ''■ A injures B's :3nger. B is advised by a surgeon to allow it to be 
amputated, refuses to do so, and dies of lockjaw. A has killed B. 

(4.) ■' A violently beats and kicks B, his wife, on the edge of a pond. 
She, to avoid his violence, throws herself into the pond and is drowned. 
A has killed B. 

(5.) * A strikes B, who is at the time so ill that she could not possibly 
have lived more than six weeks if she had not been struck. B dies earlier 
than she would otherwise have died in consequence. A has killed B. 

(6.) * A and B, the drivers of two carts, race along a high road. C is 
lying drunk in tlie middle of the road. One or other or both of the carts 
run over C and kill him. In either case both A and B have killed C. 

(7.) " It is the duty of A to put up air-headings in a colliery where they 
are required. It is the duty of B to give A notice where an air- heading is 
required. But A has means, apart from B's report, of knowing whe- 
ther such air headings are required or not. A omits to put up an air- 
heading, B omits to give A notice that one is wanted. An explosion fol- 
lows, and C is killed. Both A and B have killed C. 

^Article 27*7. 
when causing death does not amount to homicide. 

A person is not deemed to have committed homicide, 
although his conduct may have caused death, in the fol- 
lowing cases : 

(«.) ** When the death takes place more than a year and 
a day after the injury causing it. In computing the 
period, the day on which the injury is inflicted is to be 
counted as the first day ; 

(6.) (It is said) '' "When the death is caused without any 

» [Founded on 1 Hale, 428. 

'-7^ V. //o^/aiuZ, 2 Moo. and Rob. 351. ' ■ 

* 11. V. Eeanii, 1 Russ, Cr. (oth ed.) 651 ; R. v. Wager, tried at Derby Summer Assizes, 
1864, was precisely similar- See, ui/on this subject, Wharton on Homicide, §§ 374-5. If 
the intention was to escape further ill usage by suicide, the case would be altered. 

< 7f. V. Jf/efcAcr, 1 Russ. Cr. 703. 

^ K.y. Sieindull,2C. kVL.%iQ- ' __ ^.^.^^^.---■■-^-^f--—----' 

<^li.v. Hainea,2C. Si. K- 368.] -■■--^ ■"'""'"'"'"':'" ' ' - ' 

' S. D. Art. 221. 

8 [1 East, P. C. 343, 4 ; 1 Russ. Or. (5th ed.) 673, 4 ; Draft Code, s. 169. 

*1 Hale, 429. Lord Hale's reason is that " secret things belong to God; and hence it 
was that before IJa. l,o. 12, witchcraft or fascination was not feloay, because it wanted] 



214 A DIGEST OF 



[definite bodily injury to the person killed, but this does 
not extend to the case of a person whose death is caused 
not by any one bodily injury, but by repeated acts affect- 
ing the body, which collectively cause death, though no 
one of them by itself would have caused death ; 

(c.) (It seems) ' When death is caused by false testi- 
mony given in a court of justice. 

Illuslrations. 

(1.) ■' A by a long series of acts of ill-treatment, no one of which by 
itself would cause death, causes the death of B. A has killed B. 



[a trial" (i.e. I suppose because of the flifliculty of proof). I suspect that the fear of 
encouraging prosecutions for witchcraft was the real reason of this rule. Dr. Wharton 
rationalizes the rule thus : " Death from nervous causes docs not involve penal conse- 
quences." This appears to me to substitute an arbitrary quasi scientific rule for a bad 
rule founded on ignorance now dispelled. Suppose a man were intentionally killed by 
being kept awake till the nervous irritation of sleeplessness killed liim, might not this be 
murder? Suppose a man kills a sick person intentionally, by making a loud noise which 
wakes him when sleep gives him a chance of life; or suppose knowing that a man has 
aneurism of the heart, his heir rushes into his room, and roars in his ear, " Your wife is 
dead!" intending to kill and killing him, why are not these acts murder? They are no 
more "secret things belonging to God" than the operation of arsenic. As to the 
fear that by admitting that such acts are murder, people lu.jht be rendered liable to prose- 
cution for breaking the he:irts of their fathers or wives by bad conduct, the answer is that 
such an event could never be proved. A long course of conduct, gradually " breaking a 
man's heart," could never be the " director immediate " cause of death. If it was, and 
it was intended to have that effect, why should it not be murder ? In U.y.Tuwers, 12 Cox 
C. C. 530, a man was convicted before Denman, J., of manslaughter, for frightening a 
child to death (see Wharton on Homicide, § .■>72, on this case).] In R. v. Diigal, 4 Q. L. R. 
350, evidence of deo,th from syncope caused by menaces of personal violence and assault 
though without battery was held sufficient to support a conviction for manslaughter. 

[Lord Hale doubts whether voluntarily and maliciously infecting a person of the plague, 
and so causing his death, would bo murder (1. 432). It is hard to see why. He says that 
"infection is God's arrow." A different view was taken in the analogous case of It. v. 
Greenwood, 1 Russ. Cr. 07.3 ; 7 Cox, C. C. 404. As to the proviso, see Illustration (1). 

» Illustration (1.) Draft Code, s. 168. 

- B. V. Self, 1 East, P. C. 228, 227, and 1 Russ. Cr. 652 ; li.v. Squire, 1 Russ. Cr. 653.] The 
immediate cause of the woman's death was acute inflammation of the liver that might 
have been occasioned by a blow or a fall against a hard substance. There was evidence 
that about three weeks before her death, the prisoner, her husband, knocked her down 
with a bottle, that she fell against a door and remained insensible for some time ; and 
that she was confined to her bed soon after and never recovered- There was also evidence 
of frequent acts of violence within a year on his part by knocking her down and kicking 
her in the side. Held sufficient to sustain a conviction for manslaughter ; R. v. Theal, 
21 N. B. R. 449; Theal v. R. 7 Can. S. C 397. 



THE CRIMINAL LAW. 215 



[(2.) • A and B, in order to jret a reward, ottered for the conviction of 
highway robbers, conspire to>retlierto brin;: a false accusation of higliway 
robbery against C, whereby C is convicted and executed. A and B do 
not kill C/ 

- Article 2*78. 
when homicide is unlawful. ' 

•'' Homicide is unlawful, 

(a.) When death is caused by an act done with the in- 
tention to cause death or bodily harm, or which is com- 
monly known to be likely to cause death or bodily harm, 
and when such act is neither justified nor excused by the 
provisions contained in Chapter IV. or Chapter XXII. ; 

{b.) When death is caused by an omission, amounting 
to culpable negligence, to discharge a duty tending to 
the preservation of life, whether such omission is or is 
not accompanied by an intention to cause death or bodily 
harm ; 

(c.) When death is caused accidentally by an unlawful 
act.] 

1 [It. V. Mac Daniel and Others, 19 St. Tr. 7-46, and see partioularly the note 810-14, and 
Foster, 131, 132.] 

2 S. D. Art. 222. 

■' [This Article suras up the result of the preceding chapter. See Appendix Note 
VIL Draft Code, s. IG".] 



216 A DIGEST OF 



CHAPTER XXV. 

1 murder— mansla ughter— attempts to commit murder 
—concealment of birth. 

^Article 279. 

manslaughter and murder defined. 

^ [Manslaughter is unlawful homicide without malice 
aforethought. 

Murder is unlawful homicide wdth malice aforethought. 

Malice aforethought means any one or more of the fol- 
lowing states of mind preceding or co-existing with the 
act or omission by which death is caused, and ^ it may 
exist where that act is unpremeditated. 

(«.) An intention to cause the death of, or grievous 
bodily harm to, any person, whether such person is the 
person actually killed or not ; 

(6.) Knowledge that the act w^hich causes death will 
probably cause the death of, or grievous bodily harm to, 
some person, whether such person is the person actually 
killed or not, although such knowledge is accompanied 
by indilFerence whether death or grievous bodily harm 

' [See 3 Ilist. Cr. Law, ch. xxvi. pp. 1-107. 

« 8. D. Art. 2215. See Appendix Note VIIL 

■' For the autliorifii'S for this Article see Appcniiix Note VIII. Draft Code, s. 174-1T7. 

* Coke's first case of implied malice ic malice implied from the want of provocation. A 
man who wantonly or on a sliglit cause intentionally and violently kills another, shews 
by that act, not indeed the existence of hatred of long standing, but the existence of 
deadly hatred instantly conceived and executed, which is at least as bad if not worie. 
This in the strict sense of the words is malice aforethought. *" Ilobbes well observes : 
•' it is malice forethought, though not long forethought." (Diah/fe. .' of the Common Lawo. 
" Works," vi. 85.) And it is not by law neco.-siiry that it should be long. If a slight pro- 
vocation does not reduce murder to manslaughter, a fortiori, the total absence of all pro- 
▼ooation, and the mere rapidity with which the execution of a cruel v ,■ • .ficked design 
follows on its Conception cannot have that eflfeot. For oasea of slight provooation, see 1 
Bust. Or. OSO-2, and cases there oullected.] 



THE CRIMINAL LAW. 217 



[is caused or not, or by a wish that it may not be caused ; 

(c.) An intent to commit any felony whatever ; 

{d.) An intent to oppose by force any officer of justice 
on his way to, in, or returning from the execution of the 
duty of arresting, keeping in custody, or imprisoning 
any person whom he is lawfully entitled to arrest, keep 
in custody, or imprison, or the duty of keeping the peace 
or dispersing an unlawful assembly, provided that the 
offender has notice that the person killed is such an 
officer so employed. 

The expression " officer of justice " in this clause in- 
cludes every person who has a legal right to do any of 
the acts mentioned, whether he is an officer or a private 
person. 

Notice may be given, either by words, by the produc- 
tion of a warrant, or other legal authority, by the known 
official character of the person killed, or by the circum- 
stances of the case. 

This Article is subject to the provisions contained in 
Articles 280-282, both inclusive, as to the effect of provo- 
cation. 

Illustrationn. 

(1.) ' A knowing that B is suffering from disease of the lieart, and in- 
tending to kill B, gives B a slight push, and thereby kills B. A commits 
murder. 

(2.) ' A in the last illustration pushes B unlawfully, but Avithout know- 
ledge of the state of health ur intention to kill him, or do him grievous 
bodily harm. A commits manslaughter. If A laid his hand gently on B 
to attract his attention, and by doing so startled and killed him, A'a act 
•would bo no offence at. all. 

(3.) ^ A finding B asleep on straw, lights the straw, meaning to do B 
serious injury, but not to kill him. B is burnt to death. A commits 
murder. 



' [I know of no direct authority for tlieso illustrations, but they follow directly from 
the principles stated in the note.] A, profiting by \Vi weakness, encouriities him to drink 
intoxioatini? liquors in such quuntitie!< hm to cause death. A commits murder if ho intend- 
ed to cause death, and manslaughter if the liquor was given not out of good fellowship 
but with the intention of raakinR B ill or drunk ; 1{. t. Lortie, 9 Q. L. R. ii52. 

- lEirington'ti Cane, 2 Lewin, 217.] 



218 A DIGEST OF 



[(4.) ^ A waylays B, intending to beat, but not intending to kill him or 
do him grievous bodily harm. A beats B and does kill him. This 
is manslaughter at least, and may be murder if the beating were so 
violent as to be likely, according to common knowledge, to cause 
death. 

(5.) - A strikes at B with a small stick, not intending either to kill or to 
do him grievous bodily harm. Tlie blow kills B. A commits man- 
slaughter. 

{().) ^ A, recently delivered of a child, lays it naked by the side of the 
road and wholly conceals its birth. It dies of cold. This is murder or 
manslaughter, according as A had or had not reasonable ground for be- 
lieving that the child would be preserved. 

(7.) ' It is A's duty to put a stage at the mouth of the shaft of a col- 
liery. He onuts to do so. A truck falls down the shaft in consequence 
and kills B. If by omitting to erect the stage A intended that B's death 
should be caused, A is guilty of murder. If the omission was caused only 
by the culpable negligence of A, and without any intention to kill or 
injure B, or a reckless disregard to the chance of his being killed, A is 
guilty of manslaughter. 

(8.) " A, for the purpose of rescuing a prisoner, explodes a barrel of 
gunpowder in a crowded street and kills a number of persons, intending 
to explode the barrel of powder in a crowded street. A commits murder, 
although he may have no intention at all about the people in the street, 
or may hope that they will escuiio injury. 



1 [Post. 250. 

- Jiowki/'ji Cane, Fost. 294, remarking on earlier reporters ; and see 1 Russ. Cr. 685, whore 
gome oll.er cases are Kiven. 

^ U. V. Walterx, C. k M. 1()4, and 1 Ru??. Cr. <)7o. Tliis case appears to me to illustrate 
tlie true doctrine on tiie subject better than the old and often quoted case of tlio woman 
who left hor cliiid in a place wlicro it was struck by a kite and killed. The point of that 
case I take to be that the striking by a kite was an occurrence sufficiently likely to impose 
upon the mother the duty of guarding against it. Kites having been almost exterminated 
in England their habits are forgotten. Uutto lay a child on the ground in Calcutta would 
be to expose it to almost certain and speedy death from kites and other birds of prey. I 
have myself been struck by a kite which had just struck at one of my children.] It. v. 
Fenwly 3 All. 132. See also Art. ;«!>. 

<[/i?. V. y/i(ff//e«,D. iB. 248. 

^ It. V. Denmond, Barrett o,nd Others. In this case Lord Chief Justice Cockburn said, 
" If a man did an act, more especially if that were an illegal act, although its immediate 
purpose might not be to take life, yet if it were such that life was necessarily endangered 
by it— if a man did sucli an net, not with the purpose of taking life, but with the know- 
ledge or belief that life was liKely to be sacrificed by it," that was murder ; Times Report, 
Apr. 28, ]8()8. It is singular that this case is noticed in Cox's Reports only for the sake 
of a point about evidence not the least worth reporting : see 11 Cox.C. C. 140. The case 
oi It. V. Allen and Othem, the Fenians executed after the Manchester Special Commis- 
Hon in 1807, is not. so far as I know, reported, except in 17L. T. (N.S.) 223, which reprints 
the letters printed in Appendix Note IX> 



THE CRIMINAL LAW. 219 



[(9.) ^ A shoots at a domestic fowl, intending to steal it, and accident- 
ally kills B. A commits murder. 

(10.) '^ A, from wanton mischief, throws stones down a coal pit and 
knocks awaj' a scaffoldinj; The absence of the scaffolding causes an 
accident by which B is killed. A commits manslaughter. 

(11.) * A, a thief, pursued by B, a policeman, who wishes to arrest A, 
trips up B, who is accidentally killed. A commits murder. 

(12.) * A, having words with his wife, B, strikes her on the head with a 
pestle, and kills her. A commits murder, though the act was not pre- 
meditated. 

(13.) '"' A, being called names by B, a woman, throws a broomstick at 
her, which happens to kill her. A commits manslaughter. 

(14,) "A shoois at B, intending to kill him, and kills C. A commits 
murder. 

^ Aeticle 280. 

EFFECT AND DEFINITION OF PROVOCATION. 

^ Homicide, which would otherwise be murder, is not 
murder, but manslaughter, if the act by which death is 
caused is done in the heat of passion, caused by provoca- 
tion, as hereinafter defined, unless the provocation was 
sought or voluntarily provoked by the offender as an 
excuse for killing or doing bodily harm. 

1 [Fo9t. 258-9, and see note. Tliis dictum (which is supported by many other autlioritics) 
■was followed by Lord Chief Justice Cockburn m Barrel t's Citne. Ho »\i\i3l, "If a person 
scekinK to commit a felony should in the prosecution of that purpose cause, nlthough it 
might be unintentionally, the death of another.thnl, by the law of England, was murder. 
There were persons who thought and maintained that where death thus occurred, not 
being the immediate puipose of the person causing the death, it vfas a harsh law which 
made the act murder. But the Court and jury wore sitting there to administer law, not 
to make or mould it, and the law was wiiat he. told them." Times, April 28, 18(18.) In if. 
V. Sernd 16 Cox C. C. ;$1!5, Stephen, J., suggests that instead of saying that any net done 
with intent to commit a felony and which causes death amounts to murder, it wcuild be 
reasonable to say that any act known to bo dangerous to life and likely in itself to cause 
death, done for the purpose of committing a felony and which causes death, is ulurdcr. 

- [R. V. Fcnton, 1 Lewin, 179 ; 1 Russ. Cr. 817. 

■' 1 Russ. Cr. 707-12 for a largo collection of cases and authorities See, too, 1 Hale, 456- 
460; no distinction is taken in any of these cases as to the manner in which death is 
caused- 

* 1 Russ. Cr. 681. 

•'' Founded on 1 Hale, 455-6. The judges doubted whether the case wa^s murder or man- 
slaughter, and no judgment was delivered, but the prisoner was pardoned. This would 
no doubt be held to be manslaughter at the present day. 

Tost. 2(51; 1 Russ. Cr. 706.] 

' S. D. Art. 224. 

nOraftCode, 8. 170.] 



220 A DIGEST OF 



[The following acts may, subject to the provisions con- 
tained in Article 281, I o unt to provocation : — 

(a.) ' An assault and battery of such a nature as to in- 
flict actual bodily harm, or great insult, is a provocation 
to the person assaulted. 

(b.) - If two persons quarrel and fight upon equal terms, 
and upon the spot, whether with deadly weapons or 
otherwise, each gives provocation to the other, whichever 
is right in the quarrel, and whichever strikes the first 
blow. 

(c.) * An unlawful imprisonment is a provocation to 
the person imprisoned, but not to the bystanders, though 
an unlawful imprisonment may amount to such a breach 
of the peace as to entitle a bystander to prevent it by the 
use of force sufficient for that purpose. An arrest by 
officers of justice, whose character as such is known, but 
who are acting under a warrant so irregular as to make 
the arrest illegal, is provocation to the person illegally 
arrested, but not to bystanders. 

{(I.) ^ The sight of the act of adultery committed with 
his wife is provocation to the husband of the adulteress 
on the part both of the adulterer and of the adulteress. 

(e.) ^ The sight of the act of sodomy committed upon a 
man's son is provocation to the father on the part of the 
person committing the offence. 

(/.) " Neither words, nor gestures, nor injuries to pro- 
perty, nor breaches of contract, amount to provocation 

» [1 Rus?. Cr. 078. 

-' Lord Byron' » Case, 11 St. Tr. 1177 ; It v. Wullern, 12 St. Tr. 114; and I Rus?. Cr. &%- 
707 where otlier oases are cited 

•' For the tirst part of the clause see Bwkner's Cane, 1 Russ. Cr. 680 ; K. v. U't7Acr», Ibid. 
For the latter part compiire HugpeVs Cane, Sir II, Ferrer's Coac, T-joliii'i Case, and Akev'a 
Cane, with Foster's remarks on Timlvii's Case ; 1 Russ. Cr. 753-7. See also 1 Hawk. P. C. 
489 ; J{. V. Oxnx^r, 5 East 3(j8. Also Illustration (8), and Appendix Note IX.] A runaway 
slave who stubs and kills a person attempting to arrest and detain him, such arrest being 
by the law of the place lawful, oommits murder ; In re Andemon, 20 U, C. Q. B. 124. 

* [Cases cited, 1 R'lss. Cr. 687. I am not aware that it has ever been decided that 
adultery by the husband is provocation to the wife. 

'' n. V Fixher. 8 0. & \\ 182. 

» 1 East P. U. 232 ; 1 Russ. Cr. 677-9.] 



THE CRIMINAL LAW. 221 



[within this Article, except (perhaps) words expressing 
an intention to inflict actual bodily injury, accompanied 
by some act which shews that such injury is intended ; 
^ but words used at the time of an assault — slight in itself 
— may be taken into account in estimating the degree of 
provocation given by a blow. 

(g*.) •^ The employment of la\7ful force against the per- 
son of another is not a provocation to the person against 
whom it is employed. 

Illustrations- 

(1.) '•' A, a woman, gives B, a soldier, a slap in the face- A has not 
given B provocation within this Article. 

(2.) * A, a woman, strikes B, a soldier, with a heavy clog iolently in 
the face and wounds him. A has given B provocation within this 
Article. 

(3.) ^ A pulls B by the nose. A has given B provocation within the 
meaning of this Article. 

(4.) * A attempts to arrest B on an irregular warrant and in an irregular 
way. B shoots A dead. This is manslaughter by reason of the provoca- 
tion given by B to A. 

(5.) ' A arrests B under an irregular warrant and conveys him to gaol. 
C, D, and others attempt to rescue B. A resists, and one of the party 
shoots A dead. This is murder in C, D and all their party. 

(6.) * A and B, armed with swords, quarrel, draw tlieir swords, and 
fight. Each gives the other provocation. 

(7.) '■' A and B quarrel, and agree together to fight, and do fight, a duel 
next day. Neither gives the other such provocation as would reduce the 
offence to manslaughter if either is killed. 



' [1 RusB. Cr. 677, note a. ; Lord Morley's Caw, 1 Hale, P. C. 455 ; li. v. Sherwood, 1 C. & 
K. 558, and see li. v. W. Smith, 4 F. & F. 1066. 

-Illustration (12). 

'■> Stedman'g Case, Fost. 292. ' 

< Ibid. 

f'lEast. P.C. 233. 

" It. V. Sterennon, 19 St. Tr. 846. This case must be understood to be subject to the 
provisions of the next Article. 

' This is the case of the Fenians executed at Manchester in 1807, for ihooting Brett, a 
police constable in charge of a police van containing a Fenian prisoner. See Appendix, 
Note IX. 

* n. V. Walters, 12 St. Tr. 113 ; and f^ce 1{. v. Lord Byron, 11 St. Tr. 1177. 

" li. V. Ciiddy, 1 C. & K. 210 ; It. v. Barronet, and It. v, Barthelemy, Dears. 51 and 60, 
arc recent cases of duelling.] 



222 A DIGEST OF 



[(8.) * A and B quarrel, and upon the spot agree to fight with their fists. 
A, from the beginning of the figlit, uses a knife and kills B. A has not 
received such provocation from B as reduces his oflenco to man- 
slaughter. 

(9.) - A and B quarrel and agree to fight with their fists. In the course 
of the light A snatches up a knife, wliich happens to be near, and which 
he has not previously provided, and kills B. A has not received such prov- 
ocation from B as reduces his offence to manslaughter. 

(10.) ' A, at a tavern, throws a bottle at B's head and draws his svord. 
B throws a bottle at A's head. A kills B. A has not received such prov- 
ocation from B as reduces his ofience to manslaughter. 

(11.) * A and B quarrel and fight in a public-house. A leaves the 
public-house, . ays he will kill B, conceals a sword under his coat, returns 
to the public-house, tempts B to strike him with a stick, saying "Stand 
off, or I'll stab you," and without giving B time to retreat, does stab him 
mortally. A does not receive from B such provocation as reduces his 
offence to manslaughter. 

(12.) ^ A attacks B in such a manner as to endanger B's life. B drives 
off and pursues A. A in self-defence kills B. This is murder in A. 



" Article 281. 
when provocation does not extenuate homicide. 

'^ Provocation does not extenuate the guilt of homicide 
unless the person provoked is at the time vv^hen he does 
the act deprived of the power of self-control by the pro- 
vocation which he has received, and in deciding the 
question whether this was or was not the casf, regard 
must be had to the nature of the act by which the cfFender 
causes death, to the time which elapsed between the 
provocation and the act which caused death, to the 
offender's conduct during that interval, and to all other 
circumstances tending to shew the state of his mind. 

' [K. V. ^nc/erson, 1 Russ. Cr. 701. '. 

«Ibid. 

» i?. V. ^/aioffrifif/r, Kel. 128-9 ; Foster, 295-8. 

* Mawn'* CVc, Foster, 132. i .. ■ 
'Bacon's Maxim", 37, 38. I suppose B is trying to arrest A.] 

• S. D. Art. 225. See Appendix Note IX. 

' [See the cases quoted in the Illustrations, and H. v. Lynch, 5 C. & P. 324. Draft Code, 
8. 176,] li. V. McDowell. 25 U. C. Q. B. 108, 



THE CRIMINAL LAW. 223 



Illustrations. 

[(1.) ' A and B violently quarrel, and throw bottles at each other at a 
tavern, A throwing the first bottle. The company interfering, they re- 
main quiet for an hour, B wishing to be reconciled. A refuses, and says 
he will have B's blood. When B and the rest of the company leave, A 
calls B back in terms of insult, and fights with him with swords; B ia 
killed. A commits murder, though the fight is on equal terms. 

(2.) ^ B strikes A with his fist. A, being the stronger man of the two, 
throws B down on the ground, and beats out his brains with a poker. A 
comm ts murder. 

(3.) '' A and B (juarrel and fight. B, getting the best of the fight, leaves 

A. A throws a coal-pick at B and injures hii", and then wounds him 
with a knife. B leaves the house, saying to A, " You have killed me." 
A says to a third person, " I will have my revenge." B returns to the 
house soon afterwards and A stabs him again and kills him. A has 
committed murder. 

(4.) * A is turned out of a house and kicked by B. A runs to his own 
home, between 200 and 300 yards off, returns with a knife, and meeting 

B, stabs him after walking quietly with him some yards. A then runs 
back and puts his knife in its usual place. The deliberation shown in 
fetching and replacing the knife are facts to be considered by the jury in 
deciding whether or not A committed the offence whilst deprived of self- 
control by passion. 

(5.) ^ Police-officers in charge of a police-van have in custody D, a person 
charged with felony under 11 Vict. c. 12. A, B, and C, and others assault 
the van in concert, rescue the prisoner, and shoot one of the policemen 
dead with a pistol. The warrant under which D was in custody was in- 
formal, but not to the knowledge of A, B, and C. A, B, and C, and the 
others are guilty of murder, and it would have made no difference if they 
had known of the irregularity of the warrant. 

" Article 282. . ' 

provocation to third person. 
^ Provocation to a person by an actual assault or by a 

' [R. V. Onchy, 2 Str. 766 ; 1 Russ. Cr. 699-700. 

= Per Parko, B. in ii. V. r/(oma«, 7 C. ife P. 817. 

" if. V. A'lrMaw, 8 G. & P. 115. ' ; 

* R. V. Hay ward, 6 C. & P. 157. 

'' This is the case of R. v. Allen and Others, the Fonians, who murdered Brett, the 
policeman. See Appendix Note IX.] 

« S. D. Art. 226. 

' [1 Kuss. Cr. (5th ed.), T04-5. The passage referred ;to is taken from Hawkins. See 
Cari/'« Cane (p. 705), wliioh is this : ",A and B were fighting in a field in a quarrel. C, A's] 



224 A DIGEST OF 



[mutual combat, or by a false imprisonment, is in some 
cases provocation to those who are with that person at 
the time, and to his friends who, in the case of a mutual 
combat, take part in the fight for his defence. But it is 
uncertain how far this principle extends. 

* Article 283. 

suicide — abetting suicide. 

^ A person who kills himself in a manner which in the 
case of another person would amount to murder is guilty 
of murder, and every person who aids and abets any per- 
son in so killing himself is an accessory before the fact, 
or a principal in the second degree in such murder. 

^ Article 284. 

manslaughter on oneself. 

* A person cannot commit manslaughter on himself. 

■' Article 285. 

accessories before the fact in manslaughter. 

It seems that there may be accessories before the fact in 
manslaughter if the act or omission by which death is 



[kinsman, casually riding by and seeing them in fight and his kinsman one of them, rode 
in, drew his sword, thrust B through and killed him. Coke, C.J., and the rest of the 
Court agreed that this is clearly but manslaughter in him (i. e. C) and murder in the other 
for the one may have malice and the other not." I should have said C's offence was 
infinitely worse than A's, and I do not think this case would be followed in the present 
day.] 

» S. D. Art. 227. 

2 [1 Hale, P. C. 411-419. See R. v. Fretwell, L. & C. 161; R. v. Riiuell, 1 Moody 356. 
Draft Code, s. 183.] If two persons enter into an agreement to commit suicide together, 
and the means employed to produce death prove fatal to one only, the survivor is guilty 
of murder ; R. v. Jesaop, 16 Cox, C. 0. 204. 

» S. D. Art. 228. 

* [Per Pollock, C.B., and Williams, J., in R. v. Burgesg, L. & C. 258, referring to Jervis 
on Coroners, App. p. 322, note 4.] 

S. D. Art. 229. 



THE CRIMINAL LAW. 225 

[caused is not such an act or omission as, but for provoca- 
tion received by the offender, would have been murder. 

Illustration. 

^ A advises B to give C a strong dose of medicine to malce him feel sick 
and uncomfortable. B does so and C dies. B is guilty of manslaughter^ 
and A is accessory before the fact to manslaughter. 

2 Article 286. 
presumption that killing is murder. 

•'' Every person who kills another is presumed to have 
wilfully murdered him unless the circumstances are such 
as to raise a contrary presumption. 

The burden of proving circumstances of excuse, justi- 
fication, or extenuation is upon the person who is shewn 
to have killed another.] 

" Article 287. . 

punishment of murder. 

* Every one who commits murder is guilty of felony, 
and must on conviction thereof be sentenced to death. 

" Article 288. 
punishment of manslaughter. 
^ Every one who commits manslaughter is guilty of 

* [PtrBramwell.B., in Ji. v. Gaylor,!). & B. 201. The text is stated doubtfully because 
the question has never been positively decided : Coke (3rd Inst. 55), Hale (2 P. C. 437) and 
East (1 P. C. 218) say that there can be no accessories before the fact in manslaughter ; but 
the doctrine on the subject is very differently understood in these days. See R. v. Taylor, 
L. R. 2 C. C. R. 148. That unlawful killing with a deliberate attempt to do slight bodily 
harmi which happens to cause death, is manslaughter, is a comparatively modern 
doctrine. By Coke's definition it would bo murder. Whatever it is called there may 
obviously be an accessory before the fact to such an act.] 

» S. D. Art. 230. 

3 [1 Russ. Cr. 642; R. v. Greennere, 8 C. & P. 35.] 

* S. D. Art. 231. 

6 R. S. C. c. 162, 8. 2 ; 0. l8i. s. ? ; 24 & 25 Vict. o. 100. s. 1. Draft Code, s. 178. 

* S. D. Art. 232. [3 Hist. Cr. Law, 78-9. Draft Code, s. 182.] 
' R. S. C. 0. 162, 8. 5: 24 A 25 Vict. o. 100, 8. 6. 

Q 



226 A DIGEST OF 



felony and liable to imprisonment for life or to a fine or 
to both. 

' Article 289. 

^ attempts to commit murder. 

^ Every one is guilty of felony, and is liable to im- 
prisonment for life who does any of the following things 
with intent to commit murder ; that is to say — 

(a.) ' administers any poison or other destructive thing 
to any person, or causes any such poisonous thing to be 
so administered or taken, or attempts to administer it, or 
attempts to cause it to be so administered or taken ; 

(6.) ''by any means whatever wounds or causes any 
grievous bodily harm to any person ; 

(c.) " shoots at any person, or, by drawing a trigger or 
in any other manner, attempts to discharge at any person 
any kind of loaded arms ; ^ 

1 S. D.Art.233. 

* [For the history of the provisions see 3 Hist. Cr. Law, ch. xxvii. pp. 108-120. Draft 
Code, s. 179.] 

» R. S. C. c. 162, 88. 8-12 ; 24 & 25 Viet. c. 100, ss. 11-15. 

* R. S. C. 0. 162, 8S. 8, 11 ; 24 & 25 Vict. c. 100, ss. 11, 14. 

» R. S. C. c. 162, s. 8 ; [24 & 25 Vict. c. 100, s. 11. In J{. v. Gray, D. & B. 303, it was 
held that to cause congestion of the lungs by exposing a child in a field was not causing 
" a bodily injury dangerous to life " within 7 Will. 4 & 1 Vict. c. 85, s. 2, but such a case 
would now fall under clause (A.), g. 15. See remarks of Cookburn, C.J., p. 306.] 

» R. S. C. c. 162, 8. 11 ; 24 & 25 Vict. c. 100, s. 14. [The words " any other manner " mean 
any other manner like drawing a trigger, e.g. applying a lighted match to a matchlooki 
or striking a percussion cap with a hammer ; see B. v. St. George, 9 C. & P. 483, and R, v. 
Leioia, 9 C. & P. 523. These coses have been doubted by the Court for Crown Cases 
Reserved ; see B. v. Brown, L. R. 10 Q, B. D. 381. In this case a man was tried for 
attempting to commit murder by drawing a pistol from his pocket for the purpose of 
committing murder with it, but his hand was seized- I held this to be an attempt to 
commit murder by means other than those specified in clauses {a.)-{g-) ; but, on the autho- 
rity of B. V. St. George, that it did not constitute an offence under clause (/t,), the Court 
held that clause ih.), s. 15, applied only to cases other than those specified in clauses (a.)- 
(ff'), 8, 14, but ejusdem generis as for instance trying to push a man off a cliff or under a 
railway train ; but that it did not apply to extend s. 14. I agreed in this view. The Court 
thought that B. v. St. George ought to be reconsidered, and inclined to the view that if I 
had held otherwise in B. v. Brown my ruling would have been upheld.] 

' " Loaded arms " means arms loaded in the barrel with gunpowder or any other explo- 
sive substance, and ball, shot, slug, or other destructive material, or charged with com- 
pressed air and having ball, shot, slug or other destructive material in the barrel, 
although the attempt to discharge the same may fail ; R. S. 0. c. 162, s. 1 ; 24 <Sc 25 Vict. 
«. 100, 8. 19. 



THE CRIMINAL LAW. 



{d.) ' attempts to drown, suffocate, or strangle any 
person ; 

(e.) ^ destroytj or damages any building by the explo- 
sion of gunpowder or other explosive substance ; 

(/.) ^ sets fire to any ship or vessel or any part thereof, 
or any part of the tackle, apparel, or furniture thereof, or 
to any goods or chattels being therein ; 

(^.) ^ casts away or destroys any vessel ; 
. ) ^ or who attempts to commit murder by any means 
other than those specified in clauses {a.)-{g), both inclu- 
sive. 

"Article 290. 

accessory after the fact to murder. 

^ Every accessory after the fact to murder is liable to 
imprisonment for life. 

^Article 291. 

threats and conspiracies to murder. 

Every one is guilty of felony and liable to ten years' 
imprisonment who, 

(a. * maliciously sends, delivers or utters, or directly 
or indirectly causes to be received, knowing the contents 
thereof, any letter or writing threatening to kill or murder 
any person ; or 

(6.) ^ conspires, confederates or agrees with an}'" person 

» R. S. 0. 0. 162, s. 11 ; 24 & 25 Vict. 0. 100, 8. 14, 

» R. S. C. 0. 162, s. 9 ; 24 & 25 Vict. c. 100, s. 12. R. v. St. George, 9 C. & P. 483 ; 1 Russ. 
Or. 953. 

3R.S.C. 0.162,8.10; 24 & 25 Vict. o. 100. 8. 13. 

* R. S. C. 0. 162, s. 12; 24 & 25 Vict. o. 100, g. 15. [This does not apply to attempts to 
commit suicide ; R. v. Burgess, L. <k C. 258.] 
^S. D. Art. 233(t.) 

*R. S. C. c. 162, s. 4 ; 24 & 25 Vict. o. 100, s. 67. 
'S.D.Art. 234. 

8 R. S. C. c. 173, 8. 7 ; 24 & 25 Vict, c 100, s. 16. 
•R. 8. C. 0. 162, 8. 3 ; 24 & 25 Vict, o. 100, s. 4. 

q2 



228 A DIGEST OF 



to murder any other person, whether the person intended 
to be murdered is a subject of Her Majesty or not, or is 
within the Queen's dominions or not ; or 

(c.) solicits, encourages, persuades, endeavors to per- 
suade or proposes to any person to murder any other 
person, whether the person whose murder is solicited, 
encouraged or attempted to be procured is a subject of 
Her Majesty or not, or within the Queen's dominions or 
not, — 

[ ^ And whether the solicitation, encouragement, per- 
suasion, or endeavor to persuade, is addressed to any 
specific person or not, or relates to the murder of any 
specific person or not.] 

^Article 292. 

^ concealing the birth of children. 

* Every person is guilty of a misdemeanor and liable to 
two years' imprisonment who, by any secret disposition 
of the dead body of any child of which any woman is de- 
livered, endeavors to conceal the birth thereof, whether 
such child died before or after the birth thereof. 

* [The expression " delivered of a child " does not in- 
clude delivery of a foetus which has not reached the period 
at which it might have been born alive. 

*The words " secret disposition of the body " include 
cases in which the body is placed in a situation where it 

» [R. V. Most L. R. 7 Q. B. D. 244.] 

"S. D. Art. 235. " : ' ■ J- 

3 [3 Hist. Or. Law, 118. Draft Code, sb. 185-7.] 

♦R. S. C. c. 162, s. 49; 24 & 25 Vict. o. 100, a. 60. A placed the dead body of a child of 
which she had been delivered between a trunk and the wall of a room in which she lived 
alone. Being charged with having had a child she at first denied it) but being pressed 
she pointed out where the body was. Heidi that she might be convicted of concealing 
the birth of the child ; E. v. PieU, 30 U. C. C P. 409. 

'■[R. V. Berriman, 6 Cox, 0. C. 388. 

' R. V. Bnmn, L. R. 1 C. C.R. 244. The Act seems to be defective in punishing only 
the secret disposition of the body, and not the disposing of the body in suoh a way as to 
oonoeal the faot that it was born of its mother. If a woman wore to leave a child's body 
by night in the middle of a street, or to drop it by day in a crowd of people, there would 
be an efieotual concealment of the birth, but would there be a " secret disposition " of] 



THE CRIMINAL LAW. 229 

[is not likely to be found except by accident, or upon 
search, although the body is in no way concealed from 
any one who happens to go to that place.] 



[the body? Under the old Aot, 9 Qeo. 4o. 31, s. 14, it was held that a temporary oonoeal- 
ment of the body with intent to remove it afterwards to some other place was within 
the words " secret burying or otherwise disposing " : B. t. Perry, Dear. 471. This would 
seem to be so d fortiori under the present law.] 



230 A DIGEST OF 



CHAPTEE XXVI. 

BODILY INJURIES, AND ACTS AND OMISSIONS CAUSING 
DANGER TO THE PERSON. 

^Aeticle 293. 
wounding with intent. 

''Every one is guilty of felony, and liable to imprison- 
ment for life, who 

' with intent to maim, disfigure or disable any person, 
or to do some other grievous bodily harm to any person, 
or with intent to resist or prevent the lawful apprehen- 
sion or detainer of any person, 

unlawfully and maliciously, by any means whatsoever, 
wounds * or causes any grievous bodily harm to any 
person, or shoots at any person, or, by drawing a trigger,* 
or in any other manner, attempts to discharge any kind 
of loaded arms ® at any person. 

'Article 294. 
wounding. 
^ Every one is guilty of a misdemeanor, and liable to 

>S.D. Art.236(a). 

«R.S.C. 0.162, §.13; 24 & 25 Vict, c 100, s. 18. 

' The intent may be inferred from the act ; E. v. Le Dante, 2 G. & 0. 401, 

* [To wound means to divide the surface of the body whether it be an internal or 
external surfaoe, e.g. the inside of the mouth ; R. v. Leonard Smith, 8 C. <Sc P. 173 ; and 
see other oases in 1 Russ. Cr. 921. 

' But not by attempting to draw a trigger ; R. v. St. Oeorge, 9 0. & P. 483. See however 
if. V. JJrowm, L. R. lOQ. B. D. 381.] 

" See Art. 289, note (7), for definition of loaded arms. 

' S. D. Art. 239 (a). 

' R. S. C. c. 162, 8. 14 ; 24 & 25 Vict. o. 100, s. 20. [" Maliciously " in this sectloc coren 
all cases in which a person wilfully and without lawful excuse does that which he knows 
to be likely to injure another ; R, r. Martin, L. R. 8 Q. B. D. 54. It applies to cases in 
which a man strikes at one person maliciously and wounds another accidentally ; R. v.] 



THE CRIMINAL LAW. 231 

three years' imprisonment, who unlawfully and mali- 
ciously wounds or inflicts any grievous bodily harm 
upon any other person, either with or without any 
weapon or instrument. 



^Article 295. 

shootina at her majesty's vessels — wounding 
customs or inland revenue officers. 

• 

Every one is guilty of felony and liable in cases (a) and 
{b) to imprisonment for life,^ and in case (c) to imprison- 
ment for any term not exceeding five years and not less 
than six months ^ who wilfully or maliciously 

(a.) * shoots at any vessel belonging to Her Majesty or 
in the service of Canada ; or 

(6.) * maims or wounds any officer of the Army, Navy, 
Marine, or Customs, or any person acting in aid or assist- 
ance of such officer while duly employed for the preven- 
tion of smuggling and in execution of his duty ; or 

(c.) ^ shoots at, maims or wounds any officer of the 
Inland Revenue, or any person acting in his aid or assist- 
ance while employed for the prevention of illicit distil- 
lation, brewing, malting, or manufacturing, and in 
execution of his duty, or the protection or care of any 
article or place seized for any violation or supposed viola- 
tion of The Inland Revenue Act. 



[Latimer. L. R. 17 Q. B. D. 359 ; R. v. Hunt, 1 Moody C. C. 93.] A husband, who, knowing 
that he is suffering from gonorrhoea, has connection with his wife, who is ignorant of the 
fact, and who would not have submitted to the intercourse if she had been aware of bib 
condition, does not commit an offence under either 8. 20 or s. 47 of 24 & 25 Vict. c. 
100 ; R. V. Clarence, L. R. 22 Q. B. D. 23. 

' 8. D. Art. 236 (6), (c). „-.---- -^— — -- -- 

•Art. 17. 

' " Unless a greater penalty is otherwise provided by law." 

♦ R. 8. C. 0. 32, 8. 213 ; 39 A 40 Vict. c. 86, p. 193. ^-— - - 

* R. 8. C. 0. 34, 8. 99. 



232 A DIGEST OF 



^Article 296. 

disabling or administering drugs with intent to 
commit an indictable offence. 

^ Every one is guilty of felony and liable to imprison- 
ment for life and to be whipped, who, with intent thereby 
to enable himself or any other person to commit, or with 
intent thereby to assist any other person in committing 
any indictable offence, 

(a.) by any means whatsover, attempts to choke, suiFo- 
cate or strangle any other person, or by any means 
calculated to choke, suffocate or strangle, attempts to 
render any other person insensible, unconscious or in- 
capable of resistance ; or 

(b.) unlawfully applies or administers to, or causes to 
be taken by, or attempts to apply or administer to, or 
attempts or causes to be administered to or taken by, any 
person, any chloroform, laudanum or other stupefying or 
overpowering drug, matter or thing. 



^Article 29*7. 
administering poison so as to endanger life. 

* Every one is guilty of felony, and liable to ten years' 
impiisonment, who unlawfully and maliciously admin- 
ister? to, or causes to be administered to or taken by, any 
other person, any poison or other destructive or noxious 
thing, so as thereby to endanger the life of such person, or 
so as thereby to inflict upon such person any grievous 
bodily harm. 

' S. D. Art. 236 id). 

« R. S. C. c. 162. M. 15, 16 : 24 & 25 Viot. o. 100, ta. 21, 22. 

8 S, D. Art. 2.38. 

* a. S. C. 0. 162, B. 17 ; 24 & 25 Viot. o. lOO, s. 23. 



THE CRIMINAL LAW. 233 

^Akticle 298. 

administering poison with intent to injure. 

^ Every one is guilty of a misdemeanor, and liable to 
three years' imprisonment, who unlawfully and malici- 
ously administers to, or causes to be administered to or 
taken by, any other person, any poison or other destruc- 
tive or noxious thing, with intent to injure, aggrieve or 
annoy such person. . , 

^Article 299. 

causing bodily injuries by explosives. 

* Every one is guilty of felony, and liable to imprison- 
ment for life, who unlawfully and maliciously, by the 
explosion of gunpowder or other explosive substance, 
bprns, maims, disfigures, disables or does any grievous 
bodily harm to any person. 

•'Article 300. 
attempting TO cause bodily injuries by explosives. 
Every one is guilty of felony, and liable in case [a.) to 

1 S. D. Art. 239 (i). 

' B. S. C. 0. 162, s. IS ; 24 <& 25 Viot- o. 100, s. 24. [An intent to excite sexual passion is 
within this provision ; 7J. v. iriMnns, L. & C. 89.] - . , 

3 S. D, Art. 236 W. 

* R. S. C. 0. 162, 8. 21 ; 24 & 25 Vict, c 100, s. 28. As to causing explosions endangering 
life or property, see Arts. 92,93,300; destroying buildings by explosives with intent to 
murder. Art. 289 (e); and as to offences committed by explosives involving, or with 
intent to do, injury to property, see Art. 570. 

Everyone commits a misdemeanor who encloses in any letter or other mailable matter 
any explosive substancd or thing likely to injure any officer of the post office (R. S. C. o. 
35, g. 92) ; and every one incurs a penalty of five hundred dollars who sends or carries by 
any railway (R. S. C. c.38, s. 61 ; 51 Viot. (D.) o. 29, s. 263) or ship registered in Canada 
(R. S. C. c. 77, s. 14) any gunpowder, dynamite, nitro-gljcerine, aquafortis, oil of vitriol, 
or other dangerous good^, without marking theirnature on the package, and giving notice 
to the officer or person with whom they are left or to the master or owner of the ship. 

'S. D. Art. 256 (/) and Art. 287. 



234 A DIGEST OF 



imprisonment for life, and in case (6.) to fourteen years' 
imprisonment, who unlawfully and maliciously. 

{a.) * with intent to burn, maim, disfigure or disable any 
person, or to do some grievous bodily harm to any person, 

(i.) causes any gunpowder or other explosive substance 
to explode ; or 

(ii.) sends or delivers to, or causes to be taken or received 
by, any person any explosive substance, or any other 
dangerous or noxious thing ; or 

(iii.) puts or lays at any place, or casts or throws at or 
upon, or otherwise applies to any person, any corrosive 
fluid, or any destructive or explosive substance, 

and whether any bodily harm is effected or not ; or 

^ (b.) places or throws in, into, upon, against or near 
any building, ship or vessel, any gunpowder or other 
explosive substance, with intent to do any bodily injury 
to any person, whether or not any explosion takes place, 
and whether or not any bodily injury is effected. 

'Article 301. 
setting spring-guns and man-trips. 

* Every one is guilty of a misdemeanor and liable to 
three years' imprisonment who sets or places, or causes 
to be set or placed, any spring-gun, man-trap, or other 
engine calculated to destroy human life or inflict griev- 
ous bodily harm, with the intent that the same or whereby 
the same may destroy, or inflict grievous bodily harm 
upon, any trespasser or other person coming in contact 
therewith. 

Every one who knowingly and wilfully permits any 
such spring-gun, man-trap or other engine which has been 
set or placed by some other person, in any place which is 

> R. S. C. 0. 162, 8. 22 ; 24 & 25 Viot. o. 100, g. 29. 
» R. S. C. 0. 162, 8. 23 ; 21 & 26 Viot. o. 100, s. 30. 
» S. D. Art. 239 W. 
* R. S. C. 0. 162, ?. 24 ; 24 A 25 Vict. o. 100, s. 31. 



THE CRIMINAL LAW. 235 

in, or afterwards comes into, his possession or occupation, 
to continue so set or placed, shall be deemed to have set 
or placed such gun, trap or engine, with sach intent as 
aforesaid. 

This Article does not extend to any gin or trap usually 
set or placed with the intent of destroying vermin. 



'Article 302. 

intentionally endanoerino the safety of persons 

on railways. 

Every one is guilty of felony and liable to imprison- 
ment for life who unlawfully and maliciously, 

^ (a.) with intent to injure or to endanger the safety of 
any person travelling or being upon any railway, 

(i.) puts or throws upon or across su<;h railway, any 
wood, stone, or other matter or thing ; or 

(ii.) takes up, removes or displaces any rail, railway 
switch, sleeper, or other matter or thing belonging to 
such railway, or injures or destroys any track, bridge or 
fence of such railway, or any portion thereof ; or 

(iii.) turns, moves or diverts any point or other ma- 
chinery belonging to such railway ; or 

(iv.) makes or shows, hides or removes any signal or 
light upon or near to such railway ; or 

(v.) does or causes to be done any other matter or thing 
with such intent ; or 

^ {h ) throws, or causes to fall or strike at, against, into 
or upon any engine, tender, carriage or truck used upon 
any railway, any wood, stone or other matter or thing, 
with intent to injure or endanger the safety of any person 
being in or upon such engine, tender, carriage or truck, 
or in or upon any other engine, tender, carriage or truck 

> S. D. Art. 236 (g) (A). 

» R. S. C. c. 162, 8. 25 ; 24 & 25 Viot. c. 100, a, 32. 

« R. S. C. c. 162, B. 26 ; 2* & 25 Viot. c. 100, s. 33. 



236 A DIGEST OF 



of any traiu, of which such first mentioned engine, tender, 
carriage or truck forms part. 

'i-".^ICLE 303. 

NEGLIGENTLY ENDANGERING THE SAFETY OF PERSONS ON 

RAILWAYS. 

^ Every one is guilty of a misdemeanor, and liable to 
imprisonment for any term less than two years, who, 
by any unlawful act, or by any wilful omission or neglect 
of duty, endangers or causes to be endangered the safety 
of any person conveyed or being in or upon a railway, or 
aids or assists therein. 

•■'Article 304. 
injuring persons by furious driving. 

* Every one is guilty of a misdemeanor, and liable to 
imprisonment for any term less than two years, who, 
having the charge of any carriage or vehicle, by wanton 
or furious driving, or racing or other wilful misconduct, 
or by wilful neglect, does or causes to be done any bodily 
harm to any person whomsoever. 

■"'Article 305. 

preventing the saving of the life of any person 

shipwrecked. 

^ Every one is guilty of felony, and liable to seven years' 

1 S. D. Art. 240 (a). 

« R. S. C. c. 102. 8. 27; 2t & 25 Vict. c. 100, 8. 34. There must be a duty to do the thing 
omitted to be done. A promise given to do ii without anything more is not sufficient i 
Ex parte Brydgea, 18 L. C. J. 141. Every olBcer or servant of a railway commits a mis- 
demeanor who directs or knowingly permits any baggage, freight, merchandise or lumber 
car to be placed in rear of the passenger cars (R. S. C. o. ?8, s. 57 ; 51 Vict. (D.) c. 29, s. 
291) ; or who is intoxicated while in charge of a locomotive engine, or acting as conductor 
of a car or train of cars (R. S. C. c. 38, s. 58 ; 51 Vict. (D.) o. 29. s. 292). As to the violation 
by railway officers of railway regulations, see Art. 153, note (2). 

3 S. D. Art. 240 (b). 

* R. S. C. c. 162, 8. 28 ; 2t & 25 Vict. c. 100, s. 35. 
"S.D. Art. 236(1.) 

* B. S. C. c. 81, 8. 36 ; 24 & 26 Viet. c. 100, s. 17. 



THE CRIMINAL LAW. 237 



imprisonment, who prevents or impedes, or endeavors to 
prevent or impede, 

[a.) any shipwrecked person ^ in his endeavor to save his 

life; or 

(6.) any person in his endeavor to save the life of any 
shipwrecked person. ^ 

Article 306. 

leaving holes in the ice and excavations 
unguarded. 

Every one is guilty of a misdemeanor, and liable on 
summary conviction to a fine or imprisonment (or both) ^ 
who 

^ (a.) cuts or makes, or causes to be cut or made for the 
purpose of harvesting or obtaining ice for sale or use, any 
hole, opening, aperture or place, of sufficient size or area 
to endanger human life, through the ice on any navigable 
or other water open to or frequented by the public, and 
leaves such hole, opening, aperture or place, while it is in 
a state dangerous to human life, whether the same is 
frozen over or not, unguarded and uninclosed by a guard 
or fence of sufficient height and strength to prevent 
any person from accidentally riding, driving, walking, 
skating or falling therein ; or 

^ {h.) being the owner, manager or superintendent of 
any abandoned or unused mine or quarry or property 
upon or in which any excavation in search of mines or 
quarries has been or is hereafter made of a sufficient area 
and depth to endanger human life, leaves the same un- 
guarded and uninclosed by a guard or fence of sufficient 

' By B. 2 (h) " shipwrecked person " is defined to include any person belongring to or on 
board of any Britisli or t'oreign vessel wrecked, stranded, or in distress at any place in 
Canada. Thd words of the Act of the United Kingdom are : " Any person being on board 
*' of or having quitted any ship or vessel," etc. 

* I'ho words " or both " are not in s. ?9( olause(a). 
= R. S. 0. c. 1^2, 8. 29. 

* R. S. C. 0. 162, s. 80. 



238 A DIGEST OF 



height and strength to prevent any person from accident- 
ally riding, driving, walking or falling therein ; or 

^ (c.) omits within five days after conviction of any such 
offence to construct around or over such exposed opening 
or excavation a guard or fence of such height and strength. 

^ Every one whose duty it is so to guard such hole, 
opening, aperture or place is guilty of manslaughter if 
any person loses his life by accidentally falling'' therein 
while the same is unguarded. 



■* Article 30*7. 

neglecting when liable to provide food— causing 
bodily harm to apprentices and servants. 

° Every one is guilty of a misdemeanor, and liable to 
three years' imprisonment, who, 

(a.) being legally liable, either as a (husband, parent, 
guardian, or committee,) master or mistress (nurse or 
otherwisr), to provide for any person as (wife, child, ward, 
lunatic or idiot), apprentice or serv'^ant (infant or other- 
wise), necessary food, clothing, or lodging, wilfully and 
without lawful excuse refuses or neglects to provide the 
same ; or 

(b.) unlawfully or maliciously does, or causes to be 
done, any bodily harm to any such apprentice or servant, 
so that the life of such apprentice or servant is endan- 
gered, or the health of such apprentice or servant has 
been, or is likely to be, permanently injured. 

> R. S. C. c. 162, g, 31. 

s R. S. C. c. 162, s. 32. 

3 " Riding, driving, walking, skating or fa,lling." 

*S.D. Art. 239(d). 

f" R. S. C. 0. 162, s. 19 : 21 <& 25 Viot. o. 100, a. 26. The words in parentheses are not in 
the statute of the United Kingdom. On an indictment against a husband for wilfully 
neglecting to provide necessary food, etc., for his wife, it must be shewn that the wife 
was in want and that the husband had the ability to provide for her ; R. v. Narmith, 42 U. 
C. Q. B. 242. It is not necessary to show that the life of the wife is endangered or that 
her health has been or is likely to be permanently injured ; R. v. Scott, 4 Dor. Q. B. 50 ; 
28 L. C. J. 264. See also R. r. Smith, 23 L. 0. J. 247 ; R. r. Maker, 7 L. N. 82. 



THE CRIMINAL LAW. 239 

Article 308. 

negligently causing bodily injury to any person. 

^ Every one is guilty of a misdemeanor, and liable to 
imprisonment for any term less than two years, who, by 
any unlawful act, or by doing negligently or omitting to 
do any act which it is his duty to do, causes grievous 
bodily injury to any other person. 

3R.S. 0.0.162,8.33. 



240 A DIGEST OF 



CHAPTER XXVII. 

' ASSAULTS— KIDNAPPING— OBSTRUCTING OFFICERS AND 
OTHERS IN THE EXECUTION OF THEIR DUTY. 

Article 309. 
assault and battery and assault defined. 

[An ASSAULT is 

(a.) ^au attempt unlawfully to apply any, the least, 
actual ' force to the person of another directly or indi- 
rectly ; 

(b.) the act of using a gesture towards another giving 
him reasonable grounds to believe that the person using 
that gesture meant to apply such actual force to his 
person as aforesaid ; 

(c.) the act of depriving another of his liberty, 

in either case without the consent of the person as- 
saulted, or with such consent if it is obtained by fraud. 

A battery is an assault whereby any, the least, actual 
force is actually applied to the person of another, or to 
the dress worn by him, directly or indirectly. 

Provided that such acts as are reasonably necessary for 
the common intercourse of life, are not assaults or batter- 

' 1 Draft Code, ss. 203-2C6. 

«S. D. Art. 241. 

' [See Article 52 for a definition of an attempt. 

* 1 Russ. Or. (5th ed.) 956 ; 1 Hawk. P. C. 100. A most elaborate definition of " force " is 
given in the Indian Penal Code, s. 350, as the foundation for a definition of assault, 8. 361. 
The definition is almost more mathematical than legal. It begins thus : " A person is 
said to use force to another if he causes motion, change of motion, or cessation of motion 
to that other," &o., «fec. It is impossible not to ask why, if force is to be defined, motion 
should be left undefined. It is, I think, hardly too great a demand on the candour of a 
reader to suppose that he will see that a man who withdraws a chair on which a person 
is about to sit down, causing hira thereby to fall to the ground ; or who whips a horse on 
which he is sitting, and so makes him run away with his rider; or who breaks a hole in 
ice in front of a skater, and so causes him to fall into the water — " applies actual force to 
hi9 person indirectly."] B. v. Hanner, 17 U. C. Q. B. 555 ; Ex parte Dubuc, 2 L. N. 334. 



THE CRIMINAL LA W. 241 



[ries if they aro done for the purpose of such intercourse 

only and with no greater Force than the occasion requires. 

No mere words can in any case amount to an assault. 



Illustrations. 

The following are cases of assault and battery : — 

(1.) ' A cut B's dress whilst B is wearing it, but without touching or 
intending to touch any part of B's person. 

(2.) ■•' A sets a dog atB, which bites B. 

(3.) ^ A man professing to act as a medical adviser fraudulently induces 
a girl to allow him to undress her, by falsely alleging tliat it is necessary 
for medical reasons to do so. 

(4.) * A touches B, a boy of eight, in a grossly indecent manner, B ac- 
quiescing in ignorance of the nature of the act. 

(5.) * A induces B to permit him to have connection with her, by pre- 
tending to be her husband. 
The following are cases of assault without battery :^ 
(6.) * A strikes at B with a stick without hitting him. 

(7.) ' A aims a pistol at B which A knows is not loaded, but which B 
believes to be loaded. 

In the following cases no assault or battery is committed :— 
(8.) A lays his hand on B, to attract his attention. 
(9.) A, falling down, catches hold of B to save himself. 
(10.) A crowd of people, going into a theatre, push and are pushed 
against each other.] 

(11.) * A and B in a hostile manner stand in front of C's horses and 
carriage and detain him. 

(12.) ' A, with intent to cause such collision, opens a railway switch 
whereby two trains comes into collision, occasioning severe injury to a 
person on one of the trains. 



' [ff. V. 2?a!/, 1 Cox. 0. 0. 207. . 

' 1 Rusa. Cr. 958, gives several oases of this sort. 
' R. V. Eosinski, 1 Rubs. Or. 959 ; and see R. v. Caie, 1 Den. 580. 
* R. V. Lock, L. R. 2 C. C. R. 10, and see R. v. Barnett, L. R. 2 C. C. R. 81. 
R. V. WUliams, 8 C. <fe P. 280. 
« 1 Hawk. P. C. lie. 

' R. v. George. 9 C. & P. 483.] In the case of R. v. Cronan, 24 U. C. C. P. 106, & 
pistol loaded with power and wadding was discharged at the person assaulted. 
' R. V. MeElligot and Meyers, 3 0. R. f35. 
» In re Lewis, 6 Ont. P. R. 236. 

B 



242 - A DIGEST OF 



Article 310. 

assault with intent to commit rape. 

' Every one who assaults any woman or girl with intent 
to commit rape is guilty of a misdemeanor, and liable to 
imprisonment for any term not exceeding seven years and 
not less than two years. 

. -Article 311. 

indecent assaults on females. 

^ Every one who commits any indecent assault upon 
any female, is guilty of a misdemeanor and liable to 
imprisonment for any term less than two years, and to be 
whipped. 

■^ Article 312. 

indecent assaults on males. 

" Every one is guilty of a misdemeanor, and liable to 
ten years' imprisonment, who assaults any person with 
intent to commit sodomy ; or who, being a male, indecently 
assaults any other male person. • 

^ R. S. C. c. 162, 8. 38. An assault with intent to commit rape, is an attempt to commit 
rape witiiin R. S. C. c. 174, s. 183 ; John v. li. 15 Can. S. C. 384. . 

2 S. D. Art. 245 (c). 

3 R. S. C. c. 162, s. 41 ; 24 & 25 Vict. c. 100, g. 52. See also 48 & 49 Vict. c. 69, s. 4, 
Although it is an offence to carnally know, or attempt to carnally know, a girl under the 
age of twelve years, tvcn if she consents, there can be no conviction for an indecent 
assault if she consents, and that too, it appears, although the assault may be an attempt 
to carnally know the girl. See Art. 323 note. This unsatisfactory state of the law as to 
the consent of young persons has been remedied in England both as to boys and girls by 
the Act 43 & 44 Vict. c. 45, by which it is enacted that it shall be no defence to a charge 
or indictment for an indecent assault on a young person under the ago of thirteen to 
prove that he or she consented to the act of indeccnoy. A similar statute could, with 
advantage, be passed in Canada. 

* S. D. Art. 242. 

" R. S. 0. 0. 157, 8. 2 ; 24 & 25 Vict. c. 100, g. 62. As to sodomy and attempt to oommit 
sodomy, sec Arts. 213,214. The consent of a boy to the act of indecency will prevent it 
from amounting to an assault: ; li. v. Laprise, 3 L. N. 139, following R. v. Wollaaton, 12 
Cox, 180. See notes to Arts. 311 and 325. 



THE CRIMINAL LAW. 243 

^Article 313. 

assaults causing actual bodily harm. 

" Every one who commits any assault which occasions 
actual bodily harm, is guilty of a misdemeanor, and liable 
to three years' imprisonment. 

•■'Article 314. 

assaults with intent to commit indictable offences 
— assaults on peace officers,^ etc. 

" Every one is guilty of a misdemeanor, and liable to 
imprisonment for any term less than two years, who 

{a.) assaults any person with intent to commit any 
indictable offence ; or 

[b.) assaults, resists or wilfully obstructs any revenue 
or peace officer, or any officer seizing trees, logs, timber or 
other products thereof, in the due execution of his duty, 
or any person acting in aid of such officer ; or 

(c.) assaults any person with intent to resist or prevent 
the lawful apprehension or detainer of himself, or of any 
other person for any offence ; or 

{(1.) assaults, resists or wilfully obstructs any person in 

1 S. D. Art. 244. 

2 W. S. C. 0. 182, 8. 35 ; 24 & 25 Vict. c. 100, s. 47. A husband who knowing that he is 
suffering from gonorrhrea has intercourse with his wife, who is ittnorant of the fact, and 
who would not have consented tlioreto had she been aware of his condition, does not 
commit an assault upon her within the meaning of this Article ; R, v. Clarence, L. R. 
22Q. B. D. 23. 

•' S. D. Art. 215 (f.) nd (6). 

* The following are instances of assaults on peace officers :— 7?. v. Morrison, 3 R. L- 526 ; 
n. V. Jlfc/)onaW,4 Allen440; if. v. Shannon, 23 N.B. R. 12; R. v. Lnntz, 19 N. S. R. 1. In 
Morrison's case it was held that the advocate who advised the defendant to reiist the 
execution of the writ even by force was not liable to indictment therefor. 

'^R. S. C. 0.162, 8.34; 24 & 26 Vict. c. 100, s. 38. See 23 Vict, (P. C.) c.29, s,6,as to 
assaults on railway constables appointed under that Act ; and R. S. C, c. 38. s. 50 as to as- 
saults on constables on Government railways. As to obstructions of peace officers acting 
in aid of masters of vessels, see R. S. C. o. 74, s. 124 and o. 75, s- 43. As to assaults in- 
volving or for the purposes of intimidation, see Arts. 613 615. As to assaults on clergy- 
men engaged in religious duties, see Art. 212. As to assaults with intent to rob see Art. 
387. 

b2 



i.i4 ' A DIGEST OF 



the lawful execution of any procass against any lands or 
goods, or in making any lawful distress or seizure, or with 
intent to rescue any goods taken under such process, 
distress or seizure. 

Article 315. 

convicts assaulting officers of a penitentiary. 

^ Every convict confined in any penitentiary, who 
assaults any officer or servant employed therein, is guilty 
of an aggravated assault and liable to imprisonment in 
the said penitentiary for a term not exceeding two years. 

2 Article 316. 

assaulting or obstructing officers op the customs. 

^ Every one is guilty of felony and liable to imprison- 
ment for life ^ who under any pretence, either by actual 
assault, force or violence, or by threats of such assault, 
force or violence, in any way resists, opposes, molests or 
obstructs any officer of customs or any person acting in 
his aid or assistance in the discharge ,f his duty under 
the authority of any law relating to customs, trade or 
navigation. 

Article 31Y. 

ASSAULTING OR OBSTRUCTING OFFICERS OF THE 
INLAND REVENUE. 

'^ Every one is guilty of felony, and liable to imprison- 
ment for any term not exceeding five years and not less 
than six months,'^ who, under any pretence, either by 

1R.8.C.C. 82. 8.56; 6&6Viot.c. 29,8.21; 6&7 Viot 0.26,8.19. 

« 8. D. Art. 247. 

«R. S. C.c..2,8. 213. 

*Art. 17. 

s R. S. C. 0. 34, 88. 99, 98. 

* " Unleaa a greater penalty is otherwise provided by law." 



THE CRIMINAL LAW. 245 



actual assault, force or violence, or by threats of such 
assault, force or violence, in any way resists, oppresses, 
molests or obstructs any officer of Inland Revenue, or any 
person acting in his aid or assistance, in the discharge of his 
or their duty under the authority of The Inland Revenue Act. 
Everyone who obstructs, impedes or interferes with 
any officer of Inland Revenue, or any person assisting 
such officer in the discharge of his duty, is guilty of a 
misdemeanor, and liable to imprisonment for any term 
not exceeding two years and not less than six months. 

^Article 318. 

assaulting receivers of wreck. 

^ Every one is guilty of a misdemeanor, and liable on 
conviction on indictment to two years' imprisonment, 
and on summary conviction before two justices of the 
peace to a fine of four hundred dollars or to six months' 
imprisonment, who assaults any receiver of wreck, or any 
person acting as such receiver, in the exercise of his duty 
for the preservation or assistance of any vessel that is 
wrecked, stranded or in distress, or of wreck, or assaults 
any person acting by command of such receiver in the 
exercise of his duty. 

1 S. D. Art. 243. 

■ R. S. C. c. 81, s. 37 ; 24 k 25 Vict. c. 100, s. 37. As to the definition of wreck, see 
Art. 427. 

There are many other special provisions against obstructing oflQcers and others in the 
discharge of their duty. See the followinB : — 

C. S. C. c. 68, 8. 63. (Servants of joint stock companies for transmission of timber.) 

R. S. C. c. 3.5, 88. 05, 98, 9i>. (Mail carriers.) 

R. S. C. 0. 38, s. (13. (Officers of government railways.) 

R. S. C. c. 54, 8. )37. (Dominion hind surveyors ) ' 

R. S. C. c. 67. », 19. (Officers enforcing The ChineHe Immioratim Act.) 

R. S. C. c. ()9, 88 36, 37, 38. (Officers enforcing T/ie Animal Coiitagiowi Discaaen Act.) 

R. S. C. 0. 81, 88. 6, 22. Persons acting under The Wrevkx and Salvage Act.) 

R. S. C. 0. 04, s. 4. (Persons making seizure under The fUhing by Fureien Veinela Act.) 

R. S. C. 0. 103, s. 39. (Cullers.) 

R. S. C. c. 104, 8. 46. (Inspectors of weights and measures.) It. v. Dunning, 14 0. R. 60. 

51 Vict. (D.) 0. 29,8. 80. (Inspecting engineer of any railway.) 

51 Viot. (D.) c. 31, 8. 6 (2). (Officers charged with duty of cariying the Submarine Tele- 
Krapb Cable Convention into effect.) 



246 . A DIGEST OF 



, Aeticle 319. 

kidnapping. ' 

^ Every one is guilty of felony, and liable to seven 
years' imprisonment, who, without lawful authority, 
forcibly seizes and confines or imprisons any other person 
within Canada, or kidnaps any other person with in- 
tent, :i'--'- "■'■■"'■■ 

(a.) to cause such other person to be secretly confined 
or imprisoned in Canada against his will ; or 

(6.) to cause such other person to be unlawfully sent 
or transported out of Canada against his will ; or 

(c.) to cause such other person to be sold or captured 
as a slave, or in any way held to service against his 
will. 

Upon the trial of any offence under this section, the 
non-resistance, of the person so kidnapped or unlawfully 
confined, thereto, shall not be a defence, unless it appears 
that it was not caused by threats, duress or force or exhi- 
bition of force. i 

Article 320. 

assaults committed within two miles of the place 
where any public meeting or poll is held. 

" Every one who is convicted of a battery, committed 
within the distance of two miles of the place appointed 
for the holding of any public meeting and during any part 
of the day whereon any such meeting has been appointed 
to be held, is liable to a penalty not exceeding one hun- 
dred dollars, or to imprisonment for a term not exceeding 
three months, or to both. 

1 R. S. C. c. 162, 8. 48. The intent applies to the seizure and confinement as well as to 
the kidnapping ; Cornwall v. R., 33 U. C. Q. B. 106. 

" R. S. C. c. 152, s. 4. It will bo observed that the punishment is less than that to which 
the offender is liable on conviction on indictment for a common assault, and that the pro- 
vision is superfluous. 



THE CRIMINAL LAW, 247 

^ Every one wlio is convicted of a battery, committed 
during any day whereon any election, or any poll for 
any election, of a member to serve in the House of Com- 
mons of Canada, or under The Canada Temperance Act, is 
begun, holden or proceeded with, within the distance of 
two miles of the place where such election or such poll 
is begun, holden or proceeded with, is guilty of an ag- 
gravated assault. 

^Article 321. 

common assaults. 

^ Every one who commits a common assault is guilty 
of a misdemeanor, and liable, if convicted upon an indict- 
ment, to one year's imprisonment, and on summary con- 
viction, to a fine not exceeding tweuty dollars and costs, 
or to two months' imprisonment with or without hard 
labor. 

1 R. S. C. c. 8, 8. 77, c. 106 s. 69. 

"S.D. Arts. 246, 248, 252. 

» K. S. C. c. 162, (.. 36 ; 24 & 25 Vict. c. 100, ss. 47, 42. 



248 , A DIGEST OF 



CHAPTER XXVIIL 

'RAPE-CARNALLY KNOWING CHILDREN— ABORTION. ' 

' Article 322. 
definition of carnal knowledge. 

^ Carnal knowledge means the penetration to any the 
slightest degree of the organ alleged to have been carnally 
known by the male organ of generation. 

" Article 323. 
definition of rape. . ' 

^ Rape is the act of having carnal knowledge of a 

'[Draft Code, Part XX, 88. 207-n.] ' 

-S. D. Art. 253A. 

^ [R. S. C. c. 174, s. 226. 24 & 25 Vict. o. 100, s. 63, and see li. v. Cox, 1 Moody 337, 
and J{. V. Allen, 9 C. ife P. 31, decided on the earlier enactment, 9 Geo. 4, c. 31, s. 111.] 

* S. D. Art. 254. 

'' [See the cases in the Illustrations, and see 1 Russ. Cr. 858, &o. A late decision R. v. 
F/attery (46 L. J. (M.C-) 130), has thrown much uncertainty over the law. The prisoner 
was convicted of rape for having procured connection with a girl by falsely pretending 
that the act was necessary for a surgical or medical purpose, " the prosecutrix making but 
feeble resistance, believing that the prisoner was treating her medically.'' Two of the 
judges laid stress upon the resistance aa negativing consent to sexual connection, though 
not to the act done or supposed to be done. The Court, however, almost, though not 
altoeether, overruled the principle said in Ji. v. Barrow (L. R. 1 C. C. R- 158) to be 
" estiiblished by a class of ciises" ( /;. v. Jacknon, li. &!{. i$7 ; It. v. Clarke, B ear. S9T ; R. 
V. Saunderg, 8 C. & P. 265 It. v. WillianiH, 8 C. & P. 280) " that where consent is obtained 
by fraud the act done does not amount to rape." Hardly any of these cases seem to have 
been cited in the argument, though K. v. Barrow was. In 7?. v. Flattery, as in R. v. R. 
/'/crc/ier, the Statute of Westminster 2nd, 13 Edw. 1, c. 34, was referred to as giving a 
" definition of rape." I do not see how the statute can be treated as defining rape at all 
The words are "purvou est quo si homme, ravise femme, espouse, damoiselle, ou autre 
femme desoremes, par la ou ele ne se est assentue, ne avaunt ne apres eit jugcment, ko., 
e ensement par la ou home ravist femme, &o.. a force tut scit ke cle se assente apres." In 
the Latin version the words " rapiat ubi neo ante neo post consenserit." This cannot be a 
definition of rape because it contains the word '* rape." If however it is taken as being a 
definition, it implies that there may be oases of rape in which the woman consents, forthe] 



THE CRIMINAL LAW. \ 249 

[woman without her conscious permission, such per- 
mission not being extorted by force or fear of immediate 
bodily harm ; but if such permission is given the act ' 
does not ^ amount to rape, although such permission may 
have been obtained by fraud, and although the woman 
may not have been aware of the nature of the act. 

•^ A husband (it is said) cannot commit rape upon his 
wife by carnally knowing her himself, but he may do so 
if he aids another person to have carnal knowledge of 
her. ■'::■.'■■ ^ ■■'-'' "''.•' ' '/ '- 

* A boy under fourteen years of age is conclusively 
presumed to be incapable of committing rape. 



[punishment is confined to cases of rape where there is no consent befot,^ or after. The 
latter part of the enactment which spealts of consent after the fact appears inapplicable 
to rape in the modern sense of the word. When the crime is over how can a person con- 
sent to it ? Had it not been for Coke's comments (2nd Inst. 180, 433, 3rd Inst. 60), I 
should have thought that the words applied rather to abduction than to what wo mean 
by rape, especially as the statute contains provisions as to the ravishment ctwards, in 
which the word " rapuit " is used, but I cannot think that the legislature intended to lay 
down any definition at all. Their language implies that the crime was then well known, 
and so does Coke's comment. The Act was repealed by 9(teo. 4, c. 31,s. 1.] As to the 
necessity of resistance on the woman's part see Ji. v. Fich; lo U. C. C. P. 379. 

^ [See Ji. V. Bee, Irish 0. C. R., reported in Law Times Jan. 24, 1884. 

- The effect of the Criminal Law Amendment Act (48 & 49 Vict, c 69, s- 4) appears to be 
that It. V. Flatteru is no longer law, though it whs recognized as having created doubts as 
to E. V. Barrow, &o., which doubts are declared to have been well foundedi but I think 
the point doubtful.] 

By 48 <fe 49 Vict. c. 69, 's. 4, after reciting that doubts had been entertained whether a 
man who induces a married woman to permit him to have conneotion with her by per- 
sonating her husband is or is not guilty of rape, it is enacted and declared that every such 
offender is guilty of rape. [Th-j doubts referred to were founded on the cases of 7f. v. 
/'/a«en/. ^. V. iBarroio,&c., noticed in the last note.] In 1{. v. Francis, 13 U-C. Q. B. 
116, li. V. Jaekmm,\\.. & R. 487, and R. v. Clarke, Dawc, 397 were followed. 

" [1 Hale, P. C. 629. Hale's reason is that the wife's consent at marriage is irrevocable. 
It may be doubted however whether the consent is not confined to the decent and proper 
use of marital rights. If a man used violence to his wife under circumstances in which 
decency or her own health or safety required or justified her in refusing her consent, I 
think he might be convicted at least of an indecent assault. Hale gives no authority for 
it, but makes the remark only by way of introduction to the qualification contained in the 
latter !>art of the clause for which Lord Caitlehaven's Case (3 St. Tr. 402) is an authority. 

*1 Hale, P. 0.630. See /i. v. Groombridne,7C. & P. 583. The presumption extends 
to cases of assault with intent to ravish. See H. v. Philips, 8 C. & P. 733. The occasional 
incorrectness of this presumption is shown by H. v. Rend,! Den. 377. The presump- 
tion is founded, I believe, on the notion that a boy under fourteen cannot be a 
father, and could not thus inflict what was regarded as the principal injury involved in 



250 A DIGEST OF 



Illustrations. ■ 

[(1.) ' A has connection with B, a woman who at the time of the connec- 
tion is in a state of insensibility. A has ravished 13. 

(2.) - A has connection with B, an idiot, wlio by reason of her idiocy 
submits, but does not permit tlie act. A lias ravished B. 

(3.) ■^ A has connection with B, an idiot, who permits the act from 
mere sexual instinct, but without understanding its nature. A has not 
ravished B.] 

^ ^ Aeticle 324. 

, '^ punishment for rape. ' 

Every one who commits rape is guilty of felony, and 
liable to suffer death as a felon, or to imprisonment for 
life, or for any term not less than seven years. 



" Article 325. \ 

carnally knowing children under ten. 

^ Every one who unlawfully and carnally knows and 
abuses any girl under the age of ten years, is guilty of 

1 Ui- V. Canipliii, 1 Den. C. C. 89. 

^B. V. E. Fletcher, Bell.C. C. 63 ; referring to the definition given in Westm. 2, c. 34. 

••• n. V. C. Fletcher, L. R. 1 C. C. R. 39. In Ji. v. B^irraitd. R. 2 C. C. R. 81), in which the 
facts are similar to those in the ciise of Jl. Fletcher, the judges said that there was no in- 
consistency between tlie cases of li. Fletcher and C. Fletcher.] K. v. Connolly, 20 U. C. 
Q. B. 317. 

< S. D. Art. 255. 

f' R. S. C. c. 102, g. 37 ; 24 & 25 Vict. c. 100, s. 48. As to assaults with intent to commit 
rape and indecent assaults on women, see Arts. 310, 311. 

« S. D. Art. 255. 

" R. S. C. c. 102, s. 39 ; 24 & 25 Vict. c. ICO, s. 50. See also 48 & 49 Vict. c. 69, s. 3. On an 
indictment for committing the offences defined in Articles 325 and 320, or of attempting to 
commit such offences, the fiict that the girl consented is immaterial; (1 Russ. Cr. 875, 
876 ; li. V. ConntJli/, 26 U. C. Q. B. 317 : If. v. raquet,9Q,. L. R. 351 ; though it is different 
where the indictment charges an assault; for while the child cannot by law consent to 
have connection so as to make that connection no offence yet where the essence of the 
offence charged is an assault (and there can be no assault unless it be against consent) 
this attempt though a criminal offence is not an assault, and the indictment must be for 
an attempt to commit a felony if the child is under ten, and for an attempt to commit a 
misdemeanor if the cliild is between the ages of ten and twelve ; J{. v. Martin, 9 C. »fe 
P. 217. 



THE CRIMINAL LAW. 251 

felony, and liable to imprisonment for life, or for any 
term not less than five years, 

^ Article 326. 
carnally knowing children between ten and 

TWELVE. 

^ Every one who unlawfully and carnally knows and 
abuses any girl above the age of ten years and under the 
age of twelve years is guilty of a misdemeanor, and liable 
to^seven years' imprisonment. 

^Article 327. 

attempting to have carnal knowledge of a girl 

under twelve. 

* Every one who attempts to have carnal knowledge of 
any girl under twelve years of age is guilty of a misde- 
meanor, and liable to imprisonment for any term less than 
two years and to be whipped. 

•■^Article 328. 

abortion. 

■ " Every one is guilty of felony, and liable to imprison- 
ment for life, 

{a.) who, being a woman with child, with intent to 
procure her own miscarriage, unlawfully administers, or 
permits to be administered, to herself any poison or other 
noxious thing, or unlawfully uses, or permits to be used 
on herself, any instrument or other means whatsoever 
with the like intent ; or 

1 S. D. Art. 256. 

« K. S. C. c. 162, 8. 40 ; 24 & 25 Vlot. c. 100, s. 51. 

» S. D. Art. 245 (c.) 

* E. S. C. 0. 162, g. 41 ; 24 & 25 Viot. o. 100, 8. 52. 

"S.D. Art.286(j),W. 

« It. S. C. c. 162, 8. 47 ; 24 & 25 Vict. c. 100, s. 5S. 



252 A DIGEST OF 



(b.) who, with intent to procure the miscarriage of any 
woman, whether she is or is not with child, unlawfully 
administers to her or causes ' to be taken by her any poison 
or other noxious '^ thing, or unlawfully uses any instru- 
ment or other means whatsoever with the like intent. 

•■'Aeticle 329. 

supplying instruments to procure abortion. 

* Every one is guilty of a misdemeanor, and liable to 
two years' imprisonment, who unlawfully supplies or 
procures any poison or other noxious thing, or any instru- 
ment or thing whatsoever, knowing that the same is in- 
tended to be unlawfully used or employed with intent to 
procure the miscarriage of any woman, whether she is or 
is not with child, ['even if the intention so to use the same 
exists only in his own mind, and is not entertained by 
the woman whose miscarriage he intends to procure).] 

' [A person who gives another a drug to be taken in the absence of the giver " causes it 
to be taken," and, it would seem, " administers " it, though absent when it is taken ; Ji, 
V. Wilson, D. & B. 127, and oases referred to in the argument; also Ji. v. Farroxo, D. & B. 
164. 

- A thing not otherwise noxious may be noxious if administered in excess, but some 
things are so commonly noxious (arsenic, e.g.) that perhaps the administration even of a 
quantity too small to do harm might be held to constitute the oflfence punished by this 
section if there were an intent to procure a miscarriage. See R. v. Crump, L. R. 5 Q. B. 
D. 307; also R. v. Isaacs, L. & C. 220, and R. v. Hennah, 13 Cox, C. C. 547.] 

^ S. D. Art. 239 (c). 

* R. S. C. c. 162, a. 48 ; 2* & 25 Vict. c. 100, s. 59. To supply a thing which is not noxious 
with the intent mentioned is not within the section ; R. v. Isaacs, L. k C. 220. A, with 
intent to procure abortion, supplied B, a pregnant woman, with two bottlesful of Sir 
James Clarke's Female Pills, with direction to take twenty-five at a dose, and that it 
would have that efiect. la that number of pills there was sufficient oil of savin, an 
article used to procure abortion, to be greatly irritating to a pregnant woman and per- 
haps to cause an ahnrtion. Held, that A supplied anoxious thing within the statute ; R. 
V. Stitt, 30 U. C. C. P. 30. 

« R. V. Hillman, L. & C. 343. 



THE CRIMINAL LAW. 253 



CHAPTER XXIX. 

crimes affecting coniuoal and parental rights- 
bigamy— abduction. 

. ^ Article 330. 
^ definition and punishment of bigamy. 

^ Every one is guilty of the felony called bigamy and 
liable to seven years' imprisonment who, being married, 
marries any other person during the life of the former 
husband or wife, whether the second marriage takes 
place in Canada, or elsewhere. 

* [The expression " being married " means being legally 
married. The word "marries" means goes through a 
form of marriage which the '^ law of the place where such 
form is used recognizes as " binding, whether the parties 
are by that law competent to contract marriage or not, 
and although by their fraud the form employed may, 
apart from the ^ bigamy, have been insufficient to consti- 
tute a binding marriage.] 

Nothing in this Article extends to — 

(a.) ** any second marriage contracted elsewhere than in 
Canada by any other than a subject of Her Majesty 

> S. D. Art. 257. 

^ [2 Hist. Or. Law, 430.] 

^ R. S. C. 0. 161, 8. 4 ; [24 & 25 Vict. o. 100, s. 57, as explained by the authorities referred 
to in the Illustrations. See note to Article 34. 

* See Illustration (2). 

^ Bun V. BuH, 29 L. J. (Probate) 133. 

° See Illustration (3). 

^ See Illustration (4). 

^ The Act does extend to a subject of Her Majesty who has contracted a second 
marriage in Scotland during the lifetime of a wife previously married in Scotland ; R. v. 
Topping, Dear. 617. The same rale would, of course, apply to a bigamous marriage in any 
foreign country.] 



264 A DIGEST OF 



rosidont in Canada and leaving the same with intent to 
commit the od'ence ; 

(b.) ' any person marrying a second time whose hus- 
band or wife has been continually absent from such per- 
son for the space of seven years thon last past, and who 
was not known by such person to be living within that 
time ; 

(c.) any person who, at the time of such second 
marriage, was divorced from the bond of the first 



marriage ; or 

(d.) any person whose former marriage has been declared 
void by the sentence of any court of competent jurisdic- 
tion. 

^ A person who marries again during his wife's or her 
husband's lifetime, but in the honest belief on reasonable 
grounds that she or he is dead, is not guilty of bigamy. 

1 [The burden of proving ciich knowledge is upon the prossecutor when (but not until, R. 
V. Jones, L. R. 11 Q. B. D. 118) the fact that the parties have been continually absent 
for seven years has been proved. {R. v. Ciirneneen, L. R. 1 C. C. K. 1).] See also 7i. v. 
Pierce, 13 0. 11. 226 ; /{. y. M'-Qiimnn, 2 L. C. R. 340 ; R. v. Fontaine. 15 L. C. J. 141 ; R. 
V. Z>(wr;r, 27 L. C. J. 201 ; R.v. Debny, 3 G. k 0. 540; R. v. ,S'mi7/(, 14 U. C. Q. B. 505. 
Clause (f») is within the legislative authority of the Parliament of Canada ; R. v. Brierly, 
14 0. R. 525. 

- [A divorce h vinculo matrimonii pronounced by a foreign court between persons who 
have contracted marriage in England, and who continued to be domiciled in England, on 
grounds which would not justify such a divorce in England, is not a divorce within the 
meaning of this clause ; R. v. Lolley, R. & II. 237. The decision does not refer to domicil, 
but this qualification appears from later cases to be required. See /Tawj/ v. Fnrnie, L. 
R. 5 P. D. 153, and 6 P. D. 35 ; also in 8 App. Cas. 43, where R. v. Lolley is explained as 
above by Lord Selborne at p. 54, and Lord Blackburn at p. 59. Harvey v. Famie was the 
converse of R. v. Lolley. It recognized a Scotch divorce as dissolving a marriage between 
people domiciled in Scotland at the time of the divorce, though the marriage took place 
in England, the wife being domiciled at the time of the marriage in England. The oases 
on the effect of foreign judgments on marriage are collected in 2 Sm. L. C. 805-71, 8th 
Edition.] A decree of divorce obtained in a foreign court may be impeached by extrinsic 
evidence showing that such court had no such jurisdiction or that such decree was ob- 
tained by fraud ; R. v. Wright, 1 P. & B . 363. 

[A question as to the exact time at which a person can be said to be divorced may 
arise. In 1 Hale, P. C. 694, a cose is mentioned in which a person marrying after sentence 
of divorce, but pending an appeal, was held to be within a similar proviso in IJa. 1) o. 11. 
In i?t v. Hale, tried at the Leeds summer ossizes, 1875, a woman pleaded guilty to a 
oharge of bigamy before Lindley, J., she having married after the degree nisi was pro- 
nounced) but before it became absolute, which it afterwards did. The judge's attention, 
however, was not directed to the passage in Hale.] 

» R. V. ToUon, L. R. 23 Q. B. D. 168. See Article 34, note, p. 40. 



THE GRIMfNAL LAW. 255 



Illvntrntions. 

[(1.) ' A marries B, a person within the proliibitod de^roes of affinity, 
and during IVs lifetirno marries C A lias not committed bipimy. 

(2.) '^ A marries 15, and durinjr IVa lifiitime, \sovh througli a form of 
niarriaj?o witli C, a iKjrson within tlio proliibitod degrees of aflinity. A has 
committed bi^ramy. 

(3.) 'A marries H in Ireland, and during Ws lifetime goes through a 
form of raarria,'o with C in Ireland which is invalid, because both A 
and C are Protestants, and the marriage* is performed by a lioman 
Catholic priest. A commits bigamy. 

(4.) 'A, married to C, marries B in (''s lifetime by banns, B, the 
(woman) being married, for purposes of concealment, under a false name. 
A has committed bigamy. 

(5.) * A, married to B, marries C in B's lifetime, in the colony of Victoria. 

In order to show^ that A committed bigauiy it must be proved that the 
form by which he was married was one recognized as a regular form of 
marriage by the law in force in Victoria. 



^ Article 331. , i 

PRINCIPALS IN SECOND DEGREE IN BIGAMY. 

^ Every one is a principal in the second degree in the 
crime of bigamy who, being unmarried, knowingly enters 
into a marriage which renders the other party thereto 
guilty of bigamy. 

^ Article 332. 

solemnization of marriage without lawful 

authority. 

^ Every one is guilty of a misdemeanor and liable to a 
iine or to two years' imprisonment or to both who, 

' [R. V. Chadwick, 11 Q. B. 205. 

" R. V. Brawn, 1 C. & K. 144 ; R. v. Allen, L. R. 1 C. C. R. 367. 
^ R. V. Allen, vbi. sup. pp. 373-5, dieapproving of R. v. Fanning,!! Jr. C. L. 289. 
*R. V. Penaony 5 C. &P 412. In R, v. Rea, the prisoner at the bigamous marriage (be- 
fore the registrar) gave a false Christian name, and was held to be rightly convicted. 
^ BiiH V. Burt, 29 L. J. (Probate) 133.] 
»S.D. Art.25S. 

' [R. V. Brawn & Wehh, 1 C. & K. 144.] 
8 S.D. Arts. 259, 260. 
« R. S. C. 0. 161, B. 1. 



256 A DIGEST OF 



(a.) without lawful authority, the proof of which shall 
lie on him, solemnizes or pretends to solemnize any 
marriage ; or 

(6) procures any person to solemnize any marriage, 
knowing that such person is not lawfully authorized to 
solemnize such marriage, or knowingly aids or abets such 
person in performing such ceremony. 

Article 333. 

Feigned Mareiages. 

' Every one who procures a feigned or pretended mar- 
riage between himself and any woman, and every one 
who knowingly aids and assists in procuring such 
feigned or pretended marriage, is guilty of a misdemeanor 
and liable to two years' imprisonment. 

Article 334. 
solemnization of marriage contrary to law. 

^ Every one is guilty of a misdemeanor and liable to a 
fine or to one year 's imprisonment who, being lawfully 
authorized, knowingly and wilfully solemnizes any 
marriage in violation of the laws of the Province in 
which the marriage is solemnized. 

^Article 335. 

ABDUCTION with INTENT TO MARRY. 

* Every one is guilty of felony, and liable to fourteen 
years' imprisonment, who, with intent to marry or 

1 R. S. C. 0. 161, 8. 2. The prosecution must be oommenoed within one year after the 
offenc i . oommitted. 

* R. b. C. c. 161, f. :). The prosecution must be oommenoed within two years after the 
offence is oommitted. 

•S.D. Art.261. 

< R. S. C. 0. 162, s. 42; 24 & 25 Vict. c. 100, s. 53. 



THE CRIMINAL LAW. 267 

carnally know any woman, or with intent to cause 
any woman to be married or carnally known by any 
person, 

(a.) from motives of lucre takes away or detains against 
her will any such woman of any age who has any 
interest, whether legal or equitable, present or future, 
absolute, conditional or contingent, in any real or personal 
estate, or who is a presumptive heiress or co-heiress or 
presumptive next of kin, or one of the presumptive next 
of kin to any one having such interest ; or 

{b.) ^ fraudulently allures, takes away or detains any 
such woman, being under the age of twenty-one years, 
out of the possession and against the will of her father 
or mother, or of any other person having the lawful care 
or charge of her, with intent to marry or carnally know 
her ; or 

(c.) ^ by force takes away or detains against her will 
any woman of any age. 

^ Every one convicted of any offence defined in clauses 
(fl.) or (6 ) is incapable of taking any estate or interest, 
legal or equitable, in any real or personal property of 
such woman, or in which she has any interest, or which 
comes to her as such heiress, co-heiress or next of kin ; 
and if any such marriage takes place, such property 
shall, upon such conviction, be settled in such man- 
ner as any court of competent jurisdiction, upon any 
information, at the instance of the Attorney G-eneral 
for the Province in which the property is situate, 
appoints. 

' [The meaning of the words " possession " ajid " fraudulently '' was considerably dis- 
euised in K. v. Burrell, L. & C. 354 ; but as the court differed on the facts of the oasct no 
definite conclusion was arrived at.] It need net be shewn that the accused knew that 
the woman was an heiress or had such an interest ; li, v. Kaylor, 1 Dor. Q. B. 36 1. 

» R. S. C. 0. 162, s. 43 ; 24 & 25 Vict. c. 100, s. fil 

• Ji. V. Wak<tAeld, 2 Lew. 279 ; Ji. v. Perrv 1 Ruse. Cr. (4 ed.) 



aiSfg A DIGEST OF 



^Article 336. 
abduction of girls under sixteen. 

^ Every one is guilty of a misdemeanor, and liable to 
imprisonment for any term less than two years, [who 
unlawfully takes, or causes to be taken, any unmarried 
girl, being under the age of sixteen years, out of the pos- 
session and against the will of her father or mother, or of 
any other person having the lawful care or charge of 
her. 

The taking must be a taking under the power, charge, 
or protection of the taker, but it is immaterial whether 
the girl is taken with her own consent, or at her own 
suggestion, or against her will. 

The expression " taking out of the possession" means 
taking the girl to some place where the person in whose 
charge she is cannot exercise control over her, for some 
purpose inconsistent with the objects of such control. A 
taking for a time only may amount to abduction. 

If the consent of the person from whose possession the 
girl is taken is obtained by fraud, the taking is deemed 
to be against the will of such person. 

The fact that the offender supposes, in good faith and 
on reasonable grounds, that the girl is more than sixteen 
years of age, is immaterial ; but (it seems) it is necessary 
that he should either know, or have reason to believe, 
that she was under the lawful care or charge of her 
father, mother, or some other person. 

1 S. D. Art. 262. 
R. S. C. 0. n2, 8. 44 ; [24 & 25 Viot. o. 100, a. 65, as explained by the case referred to in 
the illustrations. See also 48 iS; 49 Viot, c. 69, s. 7.] A girl employed as a barmaid at a 
distance from her father's house is not in his possession ; R. v. Henkert, 16 Cox, C. C. 257. 
A, a girl under the age of sixteen, who was with her father's consent under the care of B, 
her unole, was allowed by B to dine at the house of C, who was married to B's sister. 
took A for a drive, and remained over night with her at a hotel, where he debauched her. 
The next day ho left her at B's. Held.thnt B had the lawful oare of A, and that she was 
unlawfully taken out of his possession by C ; Ji. v. Mondelet, 21 L. C. J. 154. 



THE CRIMINAL LAW. 269 



Illustrations. 

[(1.) ' A and B, two girls under sixteen, run away from home together. 
Neither abdncts the other. 

(2.) ^ A persuades B, a girl under sixteen, to leave her father's house, 
and sleep with him for three nights, and then sends her back. A has 
abducted B. 

(3.) ^ A, a lady, persuades B, a girl under sixteen, to leave her father's 
house, and come to A's house for a short time, for the purpose of going to 
the play with her. A has not abducted B. 

(4.) * A, a girl, under sixteen, asks B, by whom she has been seduced, 
to elope with her, which he does. B commits abduction. 

(5 ) •''A induces B to permit his daughter C to go away by falsely pre- 
tending that he (A) will find a place for C. A abducts C. 

(6.) "A takes B, a girl under sixteen, out of her father's possession 
believing her upon good grounds to be eighteen. A has abducted B. 

(7.) '' A meets B, a girl under sixteen, in the street, gets her to stay with 
him some hours, during which interval he seduces her, takes her back 
to the place where he found her, and there leaves her. She returns 
home. A was not aware at the time that B had a father or mother living. 
A has not abducted B.] 

\"Aeticle 33*7. 

STEALING CHILDREN UNDER FOURTEEN. 

® Every one is guilty of felony, and liable to seven 
years' imprisonment, who 

(a.) [unlawfully, either by force or fraud, leads, or takes 
away, or decoys or entices away, or detains, any child 
under the age of fourteen years ; or 

(6.) receives or harbors any such child, knowing it to 
have been so dealt with, 

with intent to deprive any parent or guardian, or other 
person having the lawful care or charge of such child, of 

' [R. V. Meadows, 1 C. A K. 399, as explained by note to R. 7. Kipps, i Cox, C. C. 168; and 
R. V. Mankletoto, Dears. C. C. 162. 
^ R. V. Timmini, Bell, 276. 
' Founded on a diotam of Crompton, J. in R, v. Timmitu. 

* R. V. BUwell, 2 Cox, C. C. 279 ; and see II. v. Robitu, 1 C. & K. 456. 
» R. V. Hopkii I, Car. <k Mar. 251. 

' R. V. Prince, L R. 2 C. 0. R. 154. 
' R. V. ffibbert, L. R. 1 C. C. R. 184.] 
' 8. D. Art. m. 

* U. S. C. 0. 162, 0. 45 ; 24 & 25 Viot. o. 100, s. 58. 

s 2 



260 A DIGEST OF 



[the possession of it, or with intent to steal any article 
about or upon the person of such child. 

This Article does not apply to any person who gets 
possession of any child, or takes any child out of the pos- 
Bv sion of any one who has lawful charge of it, if such 
person either claims a right to the possession of the child, 
or (if it is an illegitimate child) is its mother or claims to 
be its falher.] 



THE CRIMINAL LAW. 261 



CHAPTER XXX. 
offences against children by parents and others. 

^Article 338. 

neglecting to provide food, etc., for children. 

^ [Every one commits a misdemeanor who, being the 
parent or master, or mistress, of any child of tender years 
and unable to provide for itself, refuses or neglects (being 
able to do so) to provide sufficient food, clothes, bedding, 
and other ^ necessaries for such child, so as thereby to 
injure the health of such child.] 

* Article 339. 
abandoning children under two years of age. 

" Every one is guilty of a misdemeanor and liable to 
three years' imprisonment who unlawfully abandons or 
exposes any child being under the age of two years, 
whereby the life of such child is endangered, or the 
health of such child has been, or is likely to be, per- 
manently injured. 

[The words "abandoned" and "expose" include a 
wilful omission to take charge of the child on the part of 
a person legally bound to do so, and any mode of dealing 

> S. D. Art. 264. 

" [Friend's Ctue, R. & R. 20 ; R.\. Ryland, L. R. 1 C. C R. 99. It is necessary to vrove 
actual injury to the child's health ; R.y. Phillpot, Dear. 179, and R. t. Hogan, 2 Den. 277 ; 
and that the defendant actually has, not merely that he might get from the relieving 
officer, the means of providing for the child ; R. v. Chandler, Dear. 453.] See Art. 307. 

' [It is doubtful whether this includes medical attendance as regards any one but a 
parent who is under a statutory obligation to provide it ; R.y. Dotonet, L. R. 1 Q. B. D. 25.] 

* S. D. Art. 266. 
R. S. C. 0. 162, B. 20 : 21 <fc 25 Vict o. 100. s. 27 . See Arts. 279 (II. 6). 307. 



A DIGEST OF 



[with it calculated to leave it exposed to risk without 
protection. 

Illustrations. 

(1.) 1 B, A's wife, living apart from A, leaves C their child, nine months 
old, lying in the road outside A's door. A, knowing its position, lets it lie 
there from 7 p.m. till 1 am. A's mother, D, knowing the child is there, 
and being in her house, acts in the same way as A. A has abandoned 
and exposed C, but D has not, as she was under no legal obligation to 
take charge of C. 

(2.) ^ A sends B, her child five weeks of age, packed up in a hamper as 
a parcel, by railway to C, B's putative father, giving directions to the 
clerk to be very careful of the hamper, and send it by the next train. The 
child reaches C safely. A has abandoned and exposed B.] 



1 [7?. V. White, L. R. 1 C. C. R. 311. 

^ R. V. Falkingham, L. R. 1 C. C. R. 222.] 



THE CRIMINAL LAW. 263 



CHAPTEE XXXI. 

* libels on private persons. 

^ Article 340. 

definition of libel. 



[The word " libel " means 

(a.) the offence defined in this Article. 

{b.) anything by the publication of which the ofience 
is committed. 

^ Every one commits the misdemeanor called libel who 
maliciously publishes defamatory matter of any person, 
or body of persons definite and small enough for its 
individual members to be recognized as such, in or by 
means of anything capable of being a libel in the second 
sense of the word. 

The publication of a libel on the character of a dead 

• See Appendix Note X. 
1 S. D. Art. 207. 

' [Tbe best modern statement on the law of libel is by Lord Blackburn in Capital and 
Counties Bank v. Henty, L. R. 7 App. Gas. 769-788. See also my History of tbe Criminal 
Law, vol. ii. pp. 298-395 andl Hawk. P. C. 542, As to what can bo a " libel " see Arti- 
cle 341. As to " publishes," see Article 343 ; " maliciously," see Article 344. 

As to libels on the dead, see R. v. Topham, 4 T. R. 126 ; also Ji. v. Lahouchere, L. R. 12 
Q. B. D. 322-4. In February, 1887, 1 tried the oaae of R. v. Ewiur at the assizes at Cardiff. 
The case was of a newspaper libel on a political opponent who hod been dead for three 
years. It led to an assault by the dead man's sons upon his supposed libeller. I directed 
an acquittal on the ground that no evidence was offered to show that the libel in any way 
referred to any living person. I ought to have added, but I did not do so clearly, that 
there was no evidence that the defendant wished to provoke the sons of the deceased. It 
Was not even stated that he knew of their existence. I thought that an actual intent to 
injure (I should have added) or to provoke or annoy the sons was essential to the offence, 
and that a mere tendency to provoke, or constructive intention inferred from the fact 
that the libel was calculated to hurt the feelings of, any surviving relations of the de- 
eeased was not enough. I have altered the wording of this Article accordingly.] And see 
if. V. Carr, 82 L. T. 100. 

A wife cannot take criminal proceedings against her husband for defamatory libel ; R. 
V. The Lord Mayor of London, L. R. 16 Q. B. D. 772. 



264 A DIGEST OF 



[person is not a misdemeanor unless it is intended to in- 
jure or provoke living persons. 

Illmtrationa. 

(1.) ^ A religious society called the S. Nunnery, consisting of certain 
nuns and other persons, may be libelled though no individual is specially 
referred to. 

(2.) * A libel may be published against " certain persons lately arrived 
from Portugal and living near Broad Street," though no particular person 
is mentioned or referred to. 

^Article 341. 

things capable of being libels. 

* Any w^ords or signs conveying defamatory matter 
marked upon any substance, and anything which by its 
own nature conveys defamatory matter, may be a libel 
in the second sense of the word before mentioned. 
Words spoken can in no case be a libel, although they 
may convey defamatory matter. 

Illustration. ^ • 

A letter or passage in a book or newspaper, words written on a wall, a 
picture, a gallows set up before a man's door, may be a libel. 

' Article 342. 

defamatory matter. • • 

^ Defamatory matter is matter which, either directly or 
• by insinuation or irony, tends to expose any person to 
hatred, contempt or ridicule. 

» [/?. V. <7af^ercoi«. 2 Lew. 237. 

'E.v. Osborne, 2 Keb. 230 ; 2 Barnard. 138, 166.] 

8S. D. Art. 268. 

* [3 Rus8. Cr. p. 178 ; 1 Hawk. P. C. 542: Fulkard's Starkie, 131. Aa to oases in whiob 
words spoken amount to a criminal offence, see Articles 74, 121, 207.] 

« S. D. Art. 269. 

« [Folkard's Starkie, 156, 157.] See Connick v. Wifcon, 2 Kerr. 496 & 617; Andretotw. 
Wilson, 3 Kerr 86; CarvUl v. Ate Lead, 4 All. 332; Unity. Cartu, James 379. It is not 
libellous to write of a man that his outward appearance is more like an assassin than aa 
honest man ; Lang v. Qilbert, 4 AH. 445. 



THE CRIMINAL LAW. 265 



lllugtrations. . 

[The following are instances of defamatory matter : — 

> A question suggesting tliat illegitimate children were born and 
murdered in a nunnery. 

^ " A adds to his other vices ingratitude " ; 

^ " A 'vill not play the fool or the hypocrite" (meaning that he would ) ; 

* " A has the itch, and smells of brimstone " ; 

*An imputation that A fa clergyman) poisoned foxes in a hunting 
country and hung them by the neck, and was himself hung in effigy for 
so doing. 

; * Article 343. 

publication defined. 

'To publish a libel is to deliver it, read it, or comiim- 
nicate its purport in any other manner, or to exhibit it to 
the person libelled, or any other person, ^ provided that 
if the person making the publication shews that he did 
not know, and had no opportunity of knowing, the con- 
tents of the libel, or that the newspaper or other publica- 
tion of which it forms part is likely to contain libellous 
matter, his act is not deemed to amount to a publication. 

' A libel published in the ordinary course of the busi- 
ness of any person whose trade it is to deal in articles of 
the kind to which the libel belongs, is deemed to be pub- 
lished, not only by the person who actually sells or exhi- 

> [if. V. Gathercole, 2 Lew. C. C. 255. 
- Cox V. Lee, L. K. 4 Ex. 284. 

3 1 Hawk. P. C. 5J3. 

♦ ViUarg V. Momlev ; Holt on libel. 216, 2 Wils, 403. 

^ B. y. Cooper, 8 Q. B. 533. I think it might, unde eoial oircumstanceS) be a libel to 
8ay of a person a thing apparently quite inoflfensive. Suppose, for instanoe, a man wrote 
of another ''his name is A," meaning that his real name was A, and that the name of B , 
by whioh he passed, was falsely assumed) would not this be a libel?] 

»S.D. Art. 270. 

' [R. r. Burden, 4 B. & Aid. 95. A libel published to the person libelled is a misdemean- 
or, because it tends to a breach of the peace, but it is not actionable, as it cannot injure 
the reputation of the person libelled.] See also B. v. Adams, L. R. 22 Q. B. D. 66, where 
the conviction of the defendant for having published to a young woman of virtuous char- 
acter a defamatory libel by sending to her address a letter in which he proposed that she 
should for a sum of money surrender her chastity to him, was sustained. 

» lEmmens v. Poitle, L. R, 16 Q. B. D. 354.] B. v. Judd, 37 W. R. 143. 

' [Cases in Folkard's Starkie, 427-8 ; and especially R. v. Almon, 5 Burr. 2686.] 



266 A DIGEST OF 



[bits it, but also by his master if his master has given him 
general authority to sell or exhibit for his master's profit 
articles of that kind. , '■ ■:. : ; 

^Provided that whenever, upon the trial of any person 
for the publication of a libel, evidence has been given 
which establishes a presumptive case of publication 
against the defendant by the act of any other person by 
his authority, the defendant may prove,] and if proved it 
shall be a good defence, [that such publication was made 
without his authority, consent, or knowledge, and that 
the said publication did not arise from want of due care 
or caution on his part. 

. ^ If the proprietor of a newspaper or other periodical 
work gives general authority to an editor to manage the 
paper, it is a question of fact whether the proprietor au- 
thorized the editor to publish the libel which is the sub- 
ject of the indictment or information. Authorization is 
not to be presumed from the mere fact that the general 
control of the paper was left to the editor, but may be 
inferred from circumstances shewing that the proprietor 
permitted the editor to publish libels, or was indifferent 
as to whether libels were published by him or not. 

Illustrations. 

(1.) ^ A delivers to B an open letter, of which A is the author, contain- 
ing matter defamatory of C. A has published a libel. 

(2.) ^ A posts to B a sealed letter, of which A is the author, and which 
contains a libel on C. It seems that the posting of the letter is in itself a 
publication {quaere). 

(3) ^ The postman delivers to B the letter mentioned in the last illus- 
tration. The postman has not published the letter, but A has. 

(4.) A bookseller's shopman sells a libellous book over the counter in 



1 R. S. C. 0. 163, s. 5. [6 k 7 Viot. c. 96, s. 7. Probably the efifeot of such proof would 
be to excuse the master, though the Act does not say so. See R. v. Almon as to the rule 
before the statute.] The words ' ' and if proved it shall be a good defence " are not in the 
Act of the United Kingdom. 

« [R. V. Holbrook, L. R. 4 Q. B. D. 42, 

3 All these Illustrations are founded on R. r. Bardett, 4 B. & Aid. 93. (1.) is assumed 
by all the judges ; (2.) is doubted by Bayley, J., p. 153 ; (3.) is given by Best, J., p. 126.] 



THE CRIMINAL LAW. 267 



[the ordinary course of business ; both the shopman and the bookseller 
have published the libel. 



^Article 344. , 

when a libel is malicious. 

^ The publication of a libel is malicious in every case 
which does not fall within the provisions of some one or 
more of the six Articles next following. 

^Article 345. 

, publication of the truth. 

* The publication of a libel is not a misdemeanor if the 
defamatory matter is true, and if the publisher can shew 
that it was for the public benefit that such matter should 
be published. 

Illustration. 

^ A writes of B, " Many years ago B committed immoral acts-" The 
imputation is true. This is not a libel if the publisher can shew that it 
was for the public benefit that it should be published. 



> S. D. Art. 271. 

- [In Brnmage v. Prosser, 4 B. ife C. 2i7, which is a leading case on the subjeoti Bailey, 
J., says: "Malice . . . . in its legal sense means a wrongful act done intentionally and 
without just cause or excuse." From the nature of the case the publication of a libel 
must be an intentional act. The next six Articles sum up the different states of fact 
which have been held to constitute "just cause or excuse" for publishing libels. In 
Bromage v. Prosaer and many other cases, much is said of m&lice in law and malice in 
fact, ot privileged publications, etc-, etc. ; but a sufficiently simple and intelligible result 
has at last been reached by very circuitous roads. See Appendix. Note X.] 

8 8. D. Art. 272. 

* [Effect of 6 & 7 Vict. c. 96, 8. 6.] R. S. C. o. 163, s. 4 ; but it must be pleaded that the 
defamatory matter is true and that it was for the public benefit that such matter should 
be published; B. v. Movlan, 19 U. C. Q. B. 521 ; R. y. Laurier, 11 K L. 184 ; i?. v. Hickaon, 
3L.N.:39. 

' IB. V. Neieman, 1 E. & B. 558 ; and see Dear. 85.] 



268 A DIGEST OF 



^Article 346. 

publication of matter honestly believed 
to be true. 

^ [The publication of a libel is not a misdemeanor if the 
defamatory matter published is honestly believed to be 
true by the person publishing it, and if the relation be- 
tween the parties by and to whom the publication is 
made is such that the person publishing is under any 
legal, moral, or social duty to publish such matter to the 
person to whom the publication is made, or has a legiti- 
mate personal interest in so publishing it, provided that 
the publication does not exceed either in extent or in 
manner what is reasonably sufficient for the occasion,^ 
and provided that the person who publishes is not in 
fact actuated in so doing by any indirect motive. 

When the existence of the relation establishing the 
duty has been proved, the burden of proving that the 
statement was not honestly believed to be true, and that 
the defendant was in fact actuated by some indirect 
motive, (both or either), is upon the prosecutor. 

Illustrations. 

(1.) * A being asked the character of B, who had been in his service, by 
C, who is about to engage 6 as a servant, writes of B in a letter to C, the 
words " B is a drunkard and a thief." If A honestly and on reasonable 
grounds believes that B is a drunkard and a thief, though in fact he is 
neither, this is not a libel- 

If A published this letter in a newspaper it would be a libel. 

As soon as the circumstances under which the letter was written are 



1 S. D. Art. 273. 

'^ [See Folkard's Starkie, ch. xii. 249-291. I have gone carefully through these forty-two 
pagea twice or more, and I cannot see that they contain anything beyond this principle 
and rather obvious illustrations of it expressed in a very oomplioated way. The loading 
case on the subject is Hnrrimn v. Biuh, 5 E. & U. 844-348. 

8 Clark V. Molvneux, L. R. 8 Q. B. D. 87. 

* Many oases as to giving characters to servants are collected and abstracted in Folkard's 
edition of Starkie, pp. 250-7.] 



THE CRIMINAL LAW. 269 



[proved or appear the burden of proving that A did not honestly and on 
reasonable grounds believe B to be a drunkard and a thief is upon B in 
a prosecution or action by B. 

(2.) ' A, tlie private secretary of a general, being directed by the general 
to give an inspecting oflicer information as to the discipline of a body of 
troops, writes a letter to the inspector, in which he says that B, who had 
formerly commanded the troops, attempted to excite a mutiny when he 
was removed from his command. This is not a libel, though false, if A 
honestly believed it to be true, and if it was relevant to the subject on 
which A was directed to report- 

(3.) * A writes a letter containing master defamatory of B to C, A's 
mother-in-law, who is about to marry B. If A in good faith believes the 
imputations to be true, this is not a libel although the imputations are 
false. 

(4.) * The mate of a ship writes a letter to A accusing the captain, B, of 
drunkenness and misconduct. A (who has nothing to do with the matter) 
forwards the letter to the owner of the«hip believing the accusation to be 
true and thinking himself morally bound to report it. The accusation 
was in fact false. It is uncertain whether A has or has not libelled B. 

(5.) A complains to the Privy Council of the conduct of a public officer 
whom the Privy Council has power to remove. If the statement is 
made with express malice it is libellous. * 

* Article 34*7. 

fair criticism. 

* The publication of a libel is not a misdemeanor if the 
defamatory matter consist of comments upon persons who 
submit themselves, or upon things submitted by their 
authors or owners, to public criticism, provided that such 
comments are fair. 
^ A fair comment is a comment which is either true, or 

* [Beaiton v. Skene, 5 U. •& N. 838. This was an action for verbal slander, but the 
principle is the fame. 

= Todd V. HaiekiiM, 8 C. & P. 88. 

^ Coxhead v. Riehardt, 2 C. B. B69. The judges in this case were equally divided, Tindal. 
C.J,, and Erie, J., thought the letter was not a libel ; Coltman, J., and Cresswell, J., 
thought it was. 

< Proctor V. Webster, L. R. 16 Q. B. D. 112.] 

^ S. D. Art. 274. 

» [Folkard's Starkio, oh. xi. pp. 223-248. 

' Hunter v. Sharpe, 4 F. <fe F. 983 ; Folkard's Starkie, 2£i.] Upon an indictment for libel 
published in a newspaper at the defendant's instance, it was held not to be a defence that 
the editor of the newspaper (who was not indicted) before inserting the libel shewed it to 
the prosecutor, who did not express any wish to suppress publication, but wrote a reply, 
which was also inserted in such newspaper ; B. v. McElderrv, 19 U. C. Q. B. 168. 



270 A DIGEST OF 



[which, if false, expresses the real opinion of its author (as 
to the existence of matter of fact or otherwise), such 
opinion having been formed with a reasonable degree of 
care and on reasonable grounds. 

^ Every person who takes a public part in public affairs 
submits his conduct therein to criticism. 

^ Every person who publishes any book or other literary 
production, or any work of art, or any advertisement of 
goods, submits that book, or literary production, or work 
of art, or advertisement to public criticism. 

•'Every person who takes part in any dramatic per- 
formance, or other public entertainm. at, submits himself 
to public criticism to the extent to which he takes part 
in it. . 

lluntrations. 

(1.) * A, by direction of the Lords of the Admiralty, publishes to the 
world at large an official report made to the Lords of the Admiralty by B, 
which report contains matter defaming the character of C as a naval ar- 
chitect- C, having submitted to the Lords of the Admiralty proposals and 
plans for converting wooden ships of war into armoured ships of war, and 
the official report being part of a collection of papers intended to give the 
public information as to the construction of ships of war, and the publica- 
tion being made in good faith, A has not libelled B. 

(2.) ' A publishes a caricature of B, an author, intended to convey the 
impression that his books are dull and ridiculous. A has not libelled B. 

(3.) " B exhibits a picture at the annual exhibition of the Royal Acade- 
my. A writes a criticism on the pictures so exhibited, and calls B's pic- 
ture " a mere daub." If this expreases A's honest opinion, A has not 
libelled B. 

(4.) ' B publishes a.i advertisement about a bag sold by him and called 
" the Bag of Bags." A publishes a criticism on the advertisement, say- 



' [Illustration (1). 

» Illustrations (2), (3), and (4). 

* Z?i&(Wn V. 5o»(oc^-, 1 Esp. 28. , 

* Henwood v. Ifarnaon, L. R. 7 C. P. 606. 

' Carr v. Hood, 1 Camp. 354 ; Folkard's Starkie, 225-7 ; and see TabaH v. Tipper, 1 Camp. 
86). Catr v. Hood is a strong case, because the oariaature ridiculed not only the book 
but the author. It is one thing to say, " This book is absurd," another to say, " You are 
an absurd person because you have written this absurd book." This decision would cover 
(within limits) common political caricatures. 

« Thompmn v. Shackell, 1 M. & M. 187 ; Folkard's Starkie, 228. 

' Jenner v. A'Beokett, L. R. 7. Q. B, 11 ; Folkard's Starkie, 231.] 



THE CRIMINAL LAW. 211 



[ing, " The title is very silly, very slangy, and very vulgar." This may be 
a libel if it is meant to convey an imputation of B's way of managing his 
business, but is not a libel if it is only an expression of A's honest opinion 
as to the title given by B to his bag. 



1 



Article 348. 



PARLIAMENTARY PROCEEDINGS AND FAIR COMMENTS 

THEREON. 

^ It is not a misdemeanor to X'^blish such of the re- 
ports, papers, votes or proceedings of] the Senate or House 
of Commons or of any Legislative Council, Legislative 
Assembly or House of Assembly as such Senate, House, 
Council or Assembly deems [fit or necessary to be pub- 
lished ; or 

' any extract from or abstract of such report, paper, 
votes or proceedings, if it is shew^n by the party accused 
that such extract or abstract was published bond fide and 
without ^ malice ; or 

■'* a fair report of any debate in either House of Parlia- 
ment, though any such publication may contain matter 
defamatory of the character of individuals ; "(submitted) 
provided that the publisher is not actuated in making the 
publication by any indirect motive.] 

•S.D. Art.275, 

- R. S. C. 0. 11, ss. 6. 7 ; c. 163, 8S. 6. 7. [3 k 4 Vict. c. 9. ss". 1, 2. The Act contains 
directions as to proof of reports, &c. ; see also Stochlnle v. Hnnmxrd, 9 A. & E. 1. 
Tlie existence of a narrower privileite than that conferred by the statute, viz., the privi- 
lege of publishing libellous papers to members of Parliament for their use, was never 
disputed. See ImI-c v. King, 1 Wms. Saunders, 137.] 

3 R. S. C. 0. 11, s. 8 ; c. 103, s. 8. 3 & 4 Vict. e. 9, s. 3. 

* [The word " malice " must here have its popular sense. In this connection, however, 
it hasaImo.st no meaning. A publishes an abstract of a parliamentary paper, which 
destroys the character of his deadly enemy B. He rejoices in the prospect of ruining B's 
character, and so publishes both bond fide and with malice. It is absurd to say that he is 
indictable, yet if he is not, what is the sense of the word " malice " ? It seldom has any 
moaning except a misleading one. It refers not to intention, but to motive, and in almost 
all legal inquiries intention, as distinguished from motive, is the important matter. 
Another objection to it is that its popular meaning is not barely iti will, but an ill will 
which it is immoral to feel- No one would describe legitimate indignation as " malioo." 
The word is entirely avoided in the Indian Penal Code. 

' Wanon V. Walter, L. R. 4 Q. B. 73. 
~ ' Analogy of Stevena v Sampmn, L. R. 5 Ex. Div. Sg.] 



212 A DIGEST OF 



^ Article 349. 

reports of proceedings of public meeting s. 

^ It is a misdemeanor for any person to publish any re- 
port of the proceedings of a public meeting if it contains 
matter defamatory of the character of individuals, even 
though the report is fair and accurate and the object of 
publication is to give information to the public, and not 
to injure the person to whom the defamatory matter 
relates. 

^ Article 350. 

PUBLICATION in A COURT OF JUSTICE. 

[It is not a misdemeanor for a judge, counsel, witness 
or party to publish anything whatever in a judicial pro- 
ceeding before a court of competent jurisdiction, or in the 
discharge of any military duty, even if the person 
publishing knows the matter published to be false, and 
publishes it in order to injure the person to whom it 
relates. 

Illustrations. 

(1.) * A, before justices of the peace, exhibits articles of the peace against 
B, containing false and scandalous charges against B, in order to cause B 
to be bound over to good behaviour. This is not a libel. 

(2.) •■* A in an action between himself and B, falsely and maliciously 
swears an affidavit, charging C with fraud. The affidavit is not a libel. 



> S. D. Art. 275 A. 

* Davixon v. Duncan, 7 E. & B. 231. By 44 & 45 Viot. c. 60, s. 2, the law in England is 
changed so fnr as it relates to the publication in a newspaper of any such report which 
is now privileged, if the meeting is lawfully convened for a lawful purpose and open to 
the public, and if such report was fair and accurate and published without malice, and 
if the publication of the matter complained of is for the public benefit, and if the de- 
fendant does not refuse to insert in the newspaper in which the report appeared a reason- 
able letter or document of explanation or contradiction by or on behalf of the prosecutor. 
See also 45 Viot. (Ontario) o. 9 ; 50 Vict. (Man.) o. 22. 

»8. D. Art. 276. 

* Cutler V. DUon, 4 Co. 14 b. 

P This is stated most strongly and explicitly in Mnnnter v. Lamh, L. R. 11 Q. B. D. 588 ; 
Henderton v. Broomheadt 4 II. & N. 509, 676 ; see, too, Dawkinn v. Lonl Kokehy. L. R« 8 
Q. B. 265, and authorities cited there. Compare Seaman v. Netherclift, L. K. 1 C. P. Div. 
510, for an illustration of the same principle as regards slander] 



THE CRIMINAL LAW. 273 

[(3.) ' A, a military witness before a military court of inquiry as to the 
conduct of B, mal<es in reference to the subject of that inquiry certain 
written statements atfecting B, which are false to A's knowledge, and are 
intended to injure B. This is not a libel. 

(4.) '^ A being the military superior of D, and being as such under a 
military duty to make a report on B's conduct to C, their common superior, 
makes a report which he knows to be false in order to injure B. The 
report is not a libel. 

^ Article 351. 
faie reports of proceedings of courts. 

* The publication of a fair report of the proceedings of 
a court of justice is not a libel merely because it defames 
the character of taiy private' person ; but such a publica- 
tion may be an offence under Articles 121, 128, 207, 
or 218. 

A report is said to be fair when it is substantially accu- 
rate, and when it is either complete or condensed in such 
a manner as to give a just impression of what took place, 
but this Article does not extend to comments made by 
the reporter, or to reports of observations made by persons 
not entitled to take part in the proceedings. 

Reports of ex parte proceedings are within this Article 
if they are of a judicial nature, and i:)roceedings before a 
magistrate under 11 & 12 Vict. c. 42] R. S. C. c. 174, ss 
80-50, 57-91, [held with open doors, and with a view to 
the committal for trial of a suspected person, are judicial. 

■'' Provided in all the cases aforesaid that the publisher 
is not actuated in making the publication by an indirect 
motive. 

Illustrations. ' . - 

(1.) ^ A publishes in a newspaper a fair report of the examination of a 

' [Dawkiruv. Lord liohhv, L. R. 7 H. K 744. ... 

'■' Dawkim v. Lord Paulet, L. R. 5 Q. B. 94. Dissiontieute Cookburn, C.J. I should 
doubt whether this law would be extended beyond the ease of military duty.] 
■■" S. D. Art. 277. 

* [Curn/ V. Walter, 1 B. & P. 52-5 ; Hoare v. Silverlock, 9 C. B. 20; Lewii V. Levy, E. B. Jk 
E. 55;}. irtiU V. IIale>,, L. R. 3 C. P.D. m>. 
' Stevens v. Samjmm, L. R. 5 Ex. Div. 53. 
limllx V. Leader, L. R. 1 Ex. 296, 300. ] 

T 



2*74 A DIGEST OF 



[debtor before the registrar of a Bankruptcy Court, The examination 
contains irrelevant statements defaming B, who is a stranger to the 
proceedings. This is not a libel on B. 

(2.) 'A having been convicted of publishing a blasphemous libel, B 
publishes the trial, the blasphemous matter being given in full. B 
publishes a blasphemous libel. 

(3.) ^ A publishes a report of proceedings for i>erjury against B, and 
omits certain parts of the cross-examination of the witnesses. This raises 
a question for the jury whether the effect of the omission is to make the 
report partial and inaccurate. 

(4.) 'A, in the last illustration, begins his report with an account of 
the proceedings out of which the charge of perjury against B arose, and 
observes, " Evidence was given by C and D which entirely negatived B's 
story." This statement is not witliin the Article. 

(5.) * A publishes in a newspaper an account of proceedings before a 
magistrate against B. The report contains a statement by the magis- 
trate's clerk that B's alleged conduct was excedingly improper under any 
circumstances. This observation is not within this Article. 

(6.) * A publishes a fair report in a newspaper of a proceeding against B 
for perjury at a police court, whicli proceeding ended in the dismissal of 
the charge against B. This publication is not a libel. 

(7.) " A publishes in a newspaper a fair report of statements of a defa- 
matory kind, made before a magistrate extra-judicially, with a view to 
asking his advice. This publication may be a libel, as there is no judicial 
proceeding.] 

^Article 352. 
punishment for libel. 

** Every one is liable to a fine not exceeding six hundred 
dollars or to imprisonment for any term less than two 
years, or to both, who 

(a.) publishes, or threatens to publish, any libel upon 
any other person ; or 

(b.) directly or indirectly threatens to print or publish, 
or proposes to abstain from, or offers to prevent the 

1 [R. V. Carlile, 8 B. & Aid. 167. 

« Lewis 7. Levy, E. R. & E. 551. 

» Lewtt V. Levy, E. B. & E. 539. 

< DeUgal V. Bighh/, 3 Bing. N. 0. 960, 961, 

" Leioi» V. Lecvt E. B. k E. 5.37 ; see, on the other hand, Duncan v, ThwaUei, 3 B. & C. 556 . 

• McGregor v. Thicalten, 8 B. & C. 24.] 

' S. D, Art, V!?:. 

« R, 8. C. 0. 163, B. 1 i 6 & 7 Viot. o, 96, s, 3. 



TEE CRIMINAL LAW. 2*75 

printing or publishing of any matter or thing touching 
any other person, 

with intent 

(i.) to extort any money, or security for money, or any 
yaluable thing from such or any other person ; or 

(ii.) to induce any person to confer upon or procure 
for any person any appointment or office of profit or trust. 

^ Every one is liable to a fine not exceeding four hun- 
dred dollars or to imprisonment for any term less than 
two years, or to both, who maliciously publishes any 
defamatory libel knowing it to be false, 

^ or [if he does not know it to be false], to a fine not 
exceeding two hundred dollars or to one year's imprison- 
ment, or to both. 

1 R. S. C. c. 163, 8. 2; 6 & 7 Vict. c. 96, s. 4. 

- R. S. C. c. 163, 8. 3 ; 6 & 7 Vict. o. 96, s. 5. [The words bracketed are not in the Act, 
but are required to complete the sense.] 



t2 



2*76 



A DIGEST OF 



*PART VI. 

OFFENCES AGAINST EIGHTS OP PEOPERTY AND 

EIGHTS AEISING OUT OF CONTEACTS AND 

OFFENCES CONNECTED WITH TEADE. 



CHAP. XXXIL-Peopbrty-Posses- 

sioN — Asportation — Bailment. 

CHAP. XXXIII.— Things capable 

OR NOT OP BEING STOLEN. 

CHAP. XXXIV.— Theft in Gene- 

RAL. 

CHAP. XXXV. — Embezzlement by 
Clerks and Servants. 

CHAP. XXXVI.— Robbery and 
Extortion by Threats. 

CHAP. XXXVII. — Burglary, 
House-breaking, etc. 

CHAP. XXXVIII.— Punishment op 
Thepts and Ofpbncbs resembl- 
ing Theft committed in respect 
OP Particular Things, in Par- 
T1V.JLAR Places, by Particular 
Persons — Receiving Goods un- 
lawfully obtained. 

CHAP. XXXIX.— Obtaining Pro- 
perty BY False Pretences and 
other Criminal Frauds, and 
Dbalings with Property. 

CHAP. XL.— Frauds by Agents, 
Trustees, and Officers of 
Public Companies — False Ac- 
counting. 



CHAP. XLL— Receiving. 

CHAP. XLI I. -Forgery in General. 

CHAP. XLI 1 1. — Punishment op 
Particular Forgeries — Offen- 
ces resembling forgery and 
acts preparatory to the com- 
mission OP forgery. 

CHAP. XLI v.— Forgery op Trade 
Marks — Fraudulent marking 
of Merchandize — Offences 
eespecting Patented Articles, 
Industrial Designs and the 
marking of Timber. 

CHAP. XLV.— Personation. 

CHAP. XLVI. — Offences relating 
to tub Coin. 

CHAP. XLVII. — Advertising 
Counterfeit Money. 

CHAP. XLVIIL-Maucious In- 
juries TO Property. 

CHAP. XLIX.— Cruelty to Ani- 
mals. 

CHAP. L. — Offences connected 
with Trade and Breaches of 
Contract. 

CHAP. LI. — Adulteration op 
Food. 



•8 HiBt. Cr. Law, oh. xxviii. 121-176.] 



THE CRIMINAL LAW. m 



^CHAPTER XXXII. 

PROPERTY— POSSESSION— ASPORTATION— BAILMENT. 

^ Article 353. 

offences against bights of property and rights 
arising out of contracts. 

[The violation of rights of property and rights arising 
from contracts is a crime in the cases specified in this 
part. 

Such violation may be : 

(i.) By taking away property from the owner without 
his consent 

{a.) by violence to his person or habitation ; 
{&.) without such violence, 
(ii.) By persuading the owner by fraud to transfer his 
rights of property. >' 

(iii.) By the misappropriation of property entrusted by 
the owner to the offender. 

(iv.) By acts calculated to defraud, whether they 
actually defraud or not ; that is to say — 
(a.) Forgery. 
(6.) Personation. 

(c.) Coining and uttering bad money, 
(v.) By wilful and malicious mischief done to property, 
(vi.) By breaches of certain kinds of contract and inter- 
ference in certain cases with freedom of trade. 

> [This and the following chapter have I fear a somewhat abstract appearance, but it is 
impossible to understand the provisions of the Larceny Act without a knowledge of the 
doctrines which it presupposes— that is to say, the doctrine as to the definition of theft, 
and as to things capable of being stolen . The definition of theft turns on the doctrine of 
possession (see Appendix Note XI.), and this is unintelligible except in relation to the 
doctrine of property.] 

"S.D.Art. 279. 



2*78 A DIGEST OF 



^ Article 354. 

property in movable things. 

- [A person who has a right as against the world at 
large to do with or to any movable thing anything 
which the law does not specifically forbid him to do with 
or to it, and the right to prevent all other persons from 
doing therewith or thereto anything whatever which 
they are not specifically authorized to do, either by law 
or by his consent, is said to be the general owner of that 
thing, aud that thing is said to be his property, although 
he may have limited the above-mentioned rights respect- 
ing it as regards particular persons by contract. 



•' Article 355. 
. possession. 

A movable thing is said to be in the possession of a 
person when he is so situated with respect to it that he 
has the power to deal with it as owner to the exclusion 
of all other persons, and when the circumstances are 
such that he may be presumed to intend to do so in case 
of need. 

A movable thing is in the possession of .the husband 
of any woman, or the master of any servant, who has the 
custody of it for him, and from whom he can take it at 
pleasure. The word " servant " here includes any person 
acting as a servant for any particular purpose or occasion. 

The word " custody " means such a relation towards 
the thing as would constitute possession if the person 
having custody had it on his own account. 

If a servant receives anything for his master from a 
third person, not being a fellow-servant, he has the 

'S.D. Art. 280. 

* [2 Austin, Jurisprudence, 876, 965.] 

« S. D. Art. 281. [See Appendix Note XL] 



THE CRIMINAL LAW. 279 



[possession as distinguished from the custody of it, until 
he has put it into his master's possession by putting it 
into a place or thing belonging to his master, or by some 
other act of the same sort, whether the servant himself 
has or has not the custody of that place or thing. 

If a servant receives anything belonging to his master 
from a fellow-servant who has received it from their 
common master, such thing continues to be in the posses- 
sion of the master, unless the servant who delivered it 
delivered it with the intention to pass the property 
therein to the servant to whom it is delivered, having 
authority to do so from the master. 

If a servant receives anything belonging to his master 
from a fellow-servant who has received it on the master's 
account, and has done no act to put it into the master's 
possession, it is in the possession of the servant who so 
receives it, and not in his custody merely. 

♦ Illustrations. 

(1.) ' A, the master of a house, gives a dinner party, the plate and 
other things on the tahle are in liis possassion, though from time to time 
they are in the custody of his guests or servants. 

(2.) '^ A assigns the goods in his house to trustees for the henefit of his 
creditors. Tlie trustees leave him undisturbed and do not in any way 
interfere with the goods. A and not the trustees is in the possession of 
the goods. 

(3.) ' A produces a receipt stamp, and gets B to write a receipt on it in 
A's presence as for money paid by A to B. The stamp is in A's not B's 
possession. 

(4.) * A buys a bureau from B at a sale with money in a secret drawer 
of the existence of which neither A nor B is aware. The money is not in 
B's possession (though the bureau which contains it is) because B cannot 
be presumed to intend to act as the owner of it when he discovers it 

(5.) ^ A is clerk to B, a banker, money is paid to A on B's account, A 



' [Founded on 1 Halo. P. C 500. 

2 JR. V. Pratt, Bear. 360. 

3 J{. V. John. Smith, 2 Don. 449. 

* Cartwright v. Green, 8 Ves. 405 ; Merry v. Oreen, 7 M. & W. fiZ^. 

' Bazeley'a Case, 2 Leach 835. This case led to the first Act ugainst embezzlement by 
clerks and servants. No opinion was publicly delivered in it, but the judges seem to have 
considered that the act was not felony. Several similar oases are quoted in the argu- 
ment.] 



280 A DIGEST OF 



[keeps it for a short time, and then puts it into the till. The money is in 
A's possession till it is put into the till, when it passes into B's possession, 
though A may have the custody of it. 

(6.) ' B leaves a watch with its maker to he regulated- A writes to the 
maker to send the watch to B at a certain post-oHice. A then goes to the 
post-office, and pretending to be B, gets the watch. As soon as the watch 
reaches the post-ofhce addressed to B, it is in B's possession, aa the post- 
master, as regards the letter and watch, is the servant of the owner. 
(7.) ^ B being prevented by a crowd from getting near the pay-place at 

a railway station, hands a sovereign to A, who is close to it, to pay for her 
ticket, and give her the change. The sovereign is in B's possession, but 

in A's custody. 

(8.) '^ B sends his servant A with a cart of B's to fetch coals for B from 

C. A receives the coals from C, carries them in sacks on his back to the 
cart, puts them into the cart, and drives it back to B. The cart is 

throughout in B's possession, but in A's custody. The coals are in A's 

possession whilst he is carrying them on ins back to the cart, but as soon 

as they are deposited in the cart they are in the possession of B, though 

both coals and cart continue to be in the custody of A. 

(9.) * A, B's servant, obtains by false pretences B's money from C, 

another of B's servants. The money after such obtaining is still in B's 

possession. 

(10.) '" A, B's servant, obtains by false pretences from C, B's cashier, the 

property in coins which belonged to B till C gave them to A. The 

possession of the coins is in A. 

(11.) " A, B, and C are all servants to D. D's customers pay money to 

C, who pays it to A, who pays it to B. B, A, and C, each keep separate 

accounts of their receipts and payments, so as to be checks on each other. 

Money of D's paid by C to A is in A's possession, and not merely in his 

custody , 

Article 356. 
special owner. 
* Every person to whom the general owner of a mov- 

^ [R. V. Kau, D. & B. 235. See Bramwell, B's, remarks on this case in li. v. Middleton, 
L. R. 2 C. C. R. 58. 
2 Ji. V. G. Thompson, L. & C. 225. 
s R. V. Reed, Dear. 108, 257. 

* R. V. Cooke, L. R. 1 C. C. R. 295 ; and see R. v. Rohini, Dear. 418. 
6 R. V. H. Thompson, L. & C. 233. 

* R. V. Masters, 1 Den. C. C. 332. Mr. Greaves disapproves of this decision, and thinks 
that in such a case the money would be in the master's possession as soon as the first ser- 
vant received it on his account. R. v. Murray 1 Moody 276, perhaps favors this view, 
but the whole doctrine of possession is so arbitrary and unreal that it is hard to say that 
one view is better or worse than another.] 

'S. D. Art.282. 

* [R. V. Vincent, 2 Den. 461.] 



THE CRIMINAL LAW. 281 

[able thing has given a right to the possession as against 
the general owner is said to be the special owner thereof, 
or to have a special property therein, and such special 
property is not divested if the special owner parts with 
the possession under a mistake. 



• ■ ^Article 35*7. , 

possessor special owner as against stranger. 

Every person who has obtained by any means the pos- 
session of any movable thing is deemed to be the special 
owner thereof, as against any person who cannot show a 
better title thereto. 



/ ■ Illustrations. ; 

(1.) "^ A finds a bezoar-stone in the street and shows it to B, a jeweller, 
to ascertain its value. B keeps it. A has a right to the stone as against B. 

(2.) ''A steals B's watch. C picks A's [ocket of the watch. C steals 
from A. 



''Article 358. 
taking and carrying away. 

A thing is said to be taken and carried away when 
every part of it is moved from that specific portion of 
space which it occupied before it was moved (although 
the whole of it may not be moved from the whole of the 
space which it occupied), and when it is severed from 
any person or thing to which it was attached in such a 
manner that the taker has, for however short a time, 
complete control of it. An animal is said to be taken 
and driven or led away when it is caused to move from 
the place where it was before. 

1 S. D. Art. 283. 

' lArmory v. Dtlamtrie, 1 Sm. L. C. 385. 
3 ]^ounded on 1 Hale, P. C. 697.] 
*b D. Art. 281. 



282 A DIGEST OF 



IlluMrations. 

[(1.) ' A removes a parcel from one end of a watrgon to another. This 
is a taking and carrying away. 

(2.) ^ A lifts a sword partly out of its scabbard. A has taken and carried 
away the sword. 

(3.) ■' A causes a horse to be led out of a stable for him to mount. A 
has led away the horse. 

(4.) * A, a postman, instead of delivering a letter fn due course, or bring- 
ing it back in his i)0uch, which would bo liis duty if he could not deliver 
it, puts it in his pocket intending to steal it. This is a taking and carrying 
away. 

(5.) * A snatches a diamond earring from a lady's ear, tearing it out of 
the ear; it drops from his hand into her hair, and is found there by her 
afterwards. A has taken and carried away the earring. 

(6.) * Goods are tied to a string, one end of which is fastened to the bottom 
of a counter. A takes and carries them as far as the string will permit. 
A has not carried away the goods. 

(7.) ' A has gas-pipes in his house running through a meter, such pipes 
being his property. In order to prevent the gas from passing through the 
meter he puts a connecting pipe between the pipe leading to, and the 
pipe leading from, the meter, and so diverts the giis from its proper 
course. This is a taking and carrying away of the gas. 

^Article 359. ^ ' 

bailment defined. 

When one person delivers, or causes to be delivered, to 
another any movable thing in order that it may be kept 
for the person making the delivery, or that it may be used, 
gratuitously or otherwise, by the person to whom the 
delivery is made, or that it may be kept as pledge by the 
person to whom the delivery is made, or that it may be 

1 [Coalct's Case, 1 Lea. 236. 
' 2 II. V. Walsh, 2 Hubs. Cr. 126 (from MS. of Bayley, J.). An odd point would arise if 
the sword and scabbard wore merely twisted round in the place which they occupied 
before they were touched. I suppose this would not bo an asportation. 

3 R. V. Pitman, 2 C. & P. 423. 

* It. V. PoyntoH, L. & C. 247. 

"* Lapier'a Caiie,! Lea. 320; R. v. Simpton, Dears. 421. In this case a watch and chain 
snatched out of one button-hole caught in another. 

« 2 East. P. C. 556. 

J R. V. White, Dear. 203.] 

» S. D. Art. 286. 



THE CRIMINAL LAW. 283 

[carried, or that work may be done upon it by the person to 
whom delivery is made gratuitously or not, and when it 
is the intention of the parties that the specific thing so 
delivered, or the article into which it is to be made, shall 
be delivered either to the person making the delivery or 
to some other person appointed by him to receive it, the 
person making the delivery is said to bail the thing de- 
livered ; the act of delivery is called a bailment ; the per- 
son making the delivery is called the bailor; and the 
person to whom it is made is called the bailee. '] 

^ [CopoHY. Bei-nnrd, 1 Sm. L. C. 201, for bailment in general. For tlic application of the 
doctrine to criminal law, R, v. Hdisall, L & C. 58. It sceina tliat a married woman may 
be a bailee ; Jl. v. Robson, L. & C. 93. Since the Married Women's Property Act (33 & 31 
Vict. 0. 93) it would seem clear that in many oases she can.] See also 45 it 4(5 Vict. c. 75, 
B8. 12. 10. 



284 A DIGEST OF 



CHAPTER XXXIII. , 

^ THINGS CAPABLE OR NOT OF BEIN3 STOLEN. 

" Article 360. 

things capable of being stolen. 

[Things are or are not capable of being stolen accord- 
ing to the provisions contained in this chapter. 

^ Article 361. 

MOVABLE THINGS— land— THINGS FIXED TO LAND. 

* All movable things are capable of being stolen 
whether they are naturally movable or vrhether they 
vrere, before being severed therefrom, a part of, or built 
upon, or growing out of, or fixed in a permanent manner 
to, the soil of the earth. 

The soil of the earth itself cannot be stolen by re- 
moving landmarks, building so as to make permanent 
encroachments, or other means of the same kind. 

Things growing out of, built upon, permanently 
attached to, or forming part of, the soil, cannot be stolen 
whilst they continue to be so attached to it or to form part 
of it, or by the act of severance, '' except in the cases pro- 
vided for in Articles 410, 411, 412, 413, 416, 418, 419 
and 433. 

'^ Article 362. 

title-deeds and choses in action. 

^ Documents which in any way relate to the title of 

' [3 Hist. Cr. Law, ch. xxviii. pp. 121-176,] 
= S. D. Art. 280. 
a S. D. Art. 287. 

< [2 Uuss. Cr. 2()9-17. - — ^- — 

f' iSoe also Article 370, para. (3).] 

" .'^. D. Art. 2S8. .____ 

I [2 Ru88. Cr. 217^.] "' ' . 



• THE CRIMINAL LAW. 285 

[real property, and documents which constitute evidence 
of any right of action against any person, are not capable 
of being stolen, unless they fall within the terms of 
Article 398 or 400 ; but documents of title to chattels and 
tokens which represent them are capable of being stolen. 

Illustrations. 

(1.) ^ An unstamped written agreement for building cottages under 
whioh work has been and is being carried on is not capable of being 
stolen. 

(2.) ^ A pawnbroker's ticket is capable of being stolen. , 



^ Article 363. 
water — gas — electricity. 

* Running or standing water is not capable of being 
stolen '' unless (it seems) it If stored in pipes or reservoirs 
for the purpose of sale or use, in which case it is capable 
of being stolen, although money penalties are provided 
for an improper use of it. 

•^ Gas is capable of being stolen. 

'^ Electricity is capable of being stolen. 

' [K. V. WattH, Dciir. 326. 

- R. V. Mon-ixoii, Bell, C. C. 1S8. It has been held that a railway ticket is capable of 
being stolen: li. v. Boultou. 1 Don. 50«. In H. v. KUIiam (L. R. 1 C C. U. 264) it is said 
that " the reoso. for this decision do not viry clearly appear." It is, indeed, very 
bard to reconcile the decision wilh the established principle as to "choses in action" 
for what is a railway ticket except evidence of a contract by the railway to carry the 
holder?] See Art. 406. 

•■•S. D. Art. 289. * 

* [" Water is a movable wandering th'ng, .and must of necessity continue common by 
the law of nature, so that I can only have a temporary transient usufruotuavy property 
therein ; " (Blaokstone, 1 Steph. Com. 173, 5th ed.). As to water in standpipes, see /Vreiw 
V. O'Brien, L. II. 11 Q. B. D. 21. 

'' Would a man who drew a pail of water out of a reservoir covering many acres be 
guilty of theft? Hardly, I should think. ~ 

" J{. V. Firth, L. R. 1 0. C. R. 172 ; li. v. White, Dear. 2 3. 

' 45 & 46 Vict. c. 56, s. 23 and see S. D. Art. 327 (/).] It will be observed that this 
proposition rests upon a statute not in force in Canada, and it may be questioned if 
it would be maintained in the absence of a statute. 



286 A DIGEST OF 



^ Article 364. 

tame animals and wild animals in captivity. 

[(«.) - The following animals are capable of being stolen 
at common law : ' 

Tame animals, whether originally wild or not, birds, 
bees, and silkworms kept respectively for food, labor, or 
profit, their young and their produce ; 

Hawks kept for sport ; 

Wild animals in a state of captivity kept for food or 
profit, ' but not wild animals kept in a state of captivity 
for curiosity. 

(b.) The following animals are the subject of larceny 
by statute : 

* Dogs, birds, beasts, and other animals ordinarily kept 
in a state of confinement, or for any domestic purpose (or 
for any lawful purpose of profit or advantage). 

(c.) ' Animals of a base nature are not capable of being 
stolen either at common law or by statute unless they are 
ordinarily kept in a state of confinement, or for any 
domestic purpose, (or for any lawful purpose of profit or 
advantage) in which case they are the subjects of lar- 
ceny by statute. 

''' An animal capable of being stolen, whatever may be 
its nature, does not cease to be capable of being stolen 
because it is permitted at certain times to wander abroad. 

' S. D. Art. 290. 

2 [2 Hubs. Cr. Zn-i (5th ed.). 

3 2Rus8.Cr. 238(5thed.).] 

■•R. S. C. c. 1G4, s. 9. 'M & 25 Vict. c. 06, 88. 18 and 21. The words in parentheaes are 
not in the English Act. See Artiolea 408, 409 and Article 381. 

"[Coke, 3rd Inst. 108-1) ; 2 Russ. Cr. 233-9. Ferrets, so fur as Iknowi are the only 
animals to which (r) has been applied in modern times. In li. v. Searing, R. &'R.SX, 
"It appeared in evidence that ferrets are valuable animiilS) and those in question were 
Bold by the prisoner for Os. The judges were of opinion (in 1818) that ferrets though tame 
and saleable could not be the subject of larceny." I know not whether a ferret would 
fall within (/;) or not. It is neoessnr}' to mark the distinction between animals which are 
the subject of larceny at common law and those which are the subject of larceny by 
statute, because it is recognized in Bovoral statutes. See Articles 408, 409.] 



THE CRIMINAL LAW. 287 



'lUuHrations. 

[(1.) ^ The milk of a cow, tlie wool on a sheep's back, honey in a hive, 
are the subjects of larceny at common law. 

(2.) '■' Young partridges or pheasants reared under a domestic fowl are 
regarded as tame, and as such are the subjects of larceny at common law 
till they become wild. 

(3.) ' Deer in a paddock, rabbits in a hutch, are the subjects of larceny 
at common law. Bears or monkeys kept in dens are the subjects of 
larceny by statute. 

(4.) * Young partridges reared under a common hen do not cease, so 
long as they are practically under the dominion of their owner, to be the 
subjects of larceny at common law because they are allowed to wander 
abroad. 

(5.) ^ Pigeons in a dovecot are the subjects of larceny at common law 
although they are allowed to fly about. 



''Article 365. 

wild animals living and dead. 

^ Living wild animals in the enjoyment of their natural 
liberty, whether they have escaped from confinement or 
not, are not capable of being stolen although they may 
be game, and although it may be an offence to pursue or 
kill them ; '^ but the dead body of such an animal is capable 
of being stolen, and it becomes the property of the person 
on whose ground the animal dies.^ 

1 [2 Russ. Cr. 233-4 (5lh od.). 

- R. V. iihickh; L. R. 1 C. C. R. 158 ; U, v. Corn, 10 Cox. C. C. 23. 

-' 2 Russ. Cr. 233-1, 2;« (5th cd.). 

* E. V. Shicldc, L. R. 1 C. C, R. IM. 

' Ji. V. CheafoTt 2 Den. 361. It has not, however, been decided that pigeons can be 
stolen whilst actuaUy flying about apparently at liberty. I suppose the question would 
turn on the knowledge of the offender that the pigoous wore tame.] 

" S. D. Art. 21)1. 

■ f2 Russ. Cr. 236 (5th ed.). 

" Oysters iire the subject of larceny by statute ; see Art. 410 ; but they can hardly b© 
called "living wild animals." 

» Bladtt V. Higgt, 11 II. L. C. 621 ; 34 L. J. (C.P.) 286. But see R. v. Touml«v, L. R. 1 
C. C. R. 316, and Art. 370, third paragraph.] 



288 A DIGEST OF 



Article 366. 



dead! bodies. 



^ [The dead body of a human being is not capable of 
being stolen. 

^Article 36*7. 

THINGS abandoned. 

^ Things of which the ownership has been abandoned 
are not capable of being stolen. 

Illustrations. 

(1.) '' To convert treasure trove before office found is not theft. 

(2.) * To convert wreck of the sea is not theft (if the owner is unknown). 

(3.) ' To convert goods absohitely lost to the owner, and as to which 
there is no reasonable ground for believing that the owner can be found, 
is not theft. 

"^Article 368. 

things of no value, 

"Things of no value to any one are not capable of 
being stolen, but things valuable to no one but the 
owner are capable of being stolen. 

Illustration. 

" The paper and stamps of the notes of a firm of country bankers which 
have been paid by tlie London correspondent and which are capable of 
being re-issued by the country bankers may be stolen, because they are 
valuable to the country bankers (as saving the expense of printing new 
notes), though to no one else. 



» S. D. Art. 292. 

^ [li. V. Raynes, 2 East, P. C. 652. Can skeletons and anatomical preparations of parts 
of dead bodies, or whicli formerly formed parts of bodies whea living, be stolen? — teeth, 
for instance, intended to be used as false teeth.] • 

3 8. D. Art. 293. • ^ • ■ 

n2 East, P. C. 606-7. ■ 

^ 3 Inst, 1()8. It is however a misdemeanor. See Art. 476. 

* 1 Hawk. P. C. 149, s. 38. This must be understood of wreck of the sea unclaimed, and 
not of wreck forming part of or belonging to a vessel in distress, as to stealing which see 
Article 427. Penalties for various oifenoos as to wreck are contained in 17 Sc 18 Vict. c. 
104, s. 477-9 (the Merchant Shipping Act, 1851)]. See Articles 444, 446, and &"S. But see 
R, V. Martin, 3 G. ife 0. 124, as to larceny of wrecked goods under R. S. C. o. 164, e. 85, 
Article 396. 

' The law aa to finding property is more fully stated in Article 370.] 

« 8. D. Art. 294. 

» Wlarke'i (7a»e,2 Lea. iaS6.] 



THE CRIMINAL LAW. 289 



CHAPTER XXXIY. 
• theft in general. 

' Article 369. 
definition of theft. 

^ [Theft is the act of dealing, from, any motive what- 
ever, unlawfully and without claim of right with any- 
thing capable of being stolen, in any of the ways in 
which theft can be committed, with the intention of 
permanently converting that thing to the use of any per- 
son other than the general or special owner thereof. Pro- 
vided that the offences defined in Article 44*7 do not 
amount to theft. 

The ways in which theft can be committed are specified 
in Articles 370 to 374, both inclusive. In those Articles 
the word " convert " means such a conversion as is here- 
inbefore specified. 

A claim of right may be founded on a mistake of law. 

IlhiHrations. 

(1.) * A takes B's horse from his stable and backs him down a coal-pit a 
mile oft", in order to prevent the horse from being identified in the trial of 
C for stealing it. A steals B's horse. 

(2.) * A, a post-ollice clerk, drops two letters down a water-closet in 
order that a mistake which he had made in sorting them might, not be 
discovered. A steals the letters. 

(3.) ^ A, a servant, gets B's letters from the post-office, and destroys one 
of them written to B by C, A's mistress, making inquiries of B as to A's 
character, delivering the rest. A steals the letter. 



• [3 Hist. Cr. Law, oh. xxviii, p. 121-17tj.] 

' S. D. Art. 295. .__ 

■Ui.v.Hnllowav, mm. 3,70, 

8 R. V. Cabbage, R. & R. 292 ; 2 Russ. Cr. 205. 

* Wvnn'n Cane, 1 Den. 'm. 
« R. V. Jonc*, 1 Don. 188.] 



290 A DIGEST OF 



[(4.) ^ A. puddler, throws an iron axle into his furnace in order to in- 
crease the ap{)arent amount of iron puddled therein, on which A's wages 
depend. The axlo, worth 5s , is destroyed, though the iron of which it is 
composed, and which is mr jh less valuable, remains for the owner. A 
has stolen the axle. 

(5.) ^ A, witliout his master's leave, takes his master's corn to feed his 
master's horses.] This is theft. 

[(6.) ■' A gleans corn, not having, but believing himself to have, a legal 
right to do so. This is not theft. 

(7.) ' B, a game-keeper, takes snares set by A, a poacher, and a dead 
pheasant caught therein. A, honestly believing that the snares and 
pheasant were his property, and that he had a legal riirht to them, forces 
B by threats to return them. This is not robbery, and if no violence was 
used would not be theft. 

(8.) ■' A, believing that B owes him £11, and seeing B receive £7, knocks 
down B and tries to get the £7 out of his pocket, say ng " Pay me the 
eleven sovereigns you owe me." This is not robbery, and. if no violence 
were used would not be theft. 

(9.) " The ore in a mine belongs to adventurers, and is to be excavated 
by tributers. *" e set of tribnters are to be paid a larger sum in the 
pound than the other set for the ore excavated by them. The ore ex- 
cavated by each set is placed in a heap by itself A, one of the tributers, 
moves a quantity of ore from the heap to be paid for at the lower to the 
heap to be paid for at the higher rate. A has not stolen the ore. 

(10.) ' Workmen in the glove trade are paid according to the number 
of gloves finished by them. A (a workman) takes gloves from his 
master's warehouse and puts them in the place where the newly-finished 
gloves are put to be counted, so as to increase the apparent number of 
newly-finished gloves, and with intent fraudulently to obtain payment 
for the gloves so removed from the warehouse. This is not theft. 

(11.) ** B uses many bags in his trade, and is supplied with them by C. 
A, B's servant, takes old bags supplied by C to B from B's house, and puts 
them in a place outside B's house, where new bags were habitually put 
by C. C, by concert with A, claims payment for the bags from B as for 
bags newly supplied. A is guilty of theft, and C is an accessory before 
the fact. : 

' [R. V. Ri'chardu, 2 Russ. Cr. 250-7. This case is not altogether easy to reconcile with 
li. V. WM ; see Illustration (9). 

■ It. r. Morfit, R. & R. .to;.] This is not theft in Ensrland since the passing of 26 <fe 27 
Vict. c. 103. 

^ [2 Russ. Cr. 104-5, commenting on Woodfall, Landlord and Tenant.] See also R.'r. 
Horwman, 4 P. & B. 529. 

*[R.v. Hall, iiC.& P. 409. 

'' R. V. Boden. 1 C. .t K. .ms. 
: * i?. V. Weho, 1 Moody A^l. By 24 A 25 Vict. c. 96, g. 39, which re-enacts an earlier Act 
passed in consequence of this decision, this is now felony ; see Article 447. 

' R. V. Pooh, D. k B. 315; R. v. HoUowny, 1 Don. 370, is similar in principle. 

' R. V. Manning, Dear. 21 ; R. r. Hall, 1 Den. 381, is very like this case.] 



THE CRIMINAL LAW. 291 



^ Article StO. 

THEFT BY TAKING AND CARRYING AWAY — ROBBERY. 

^ [Theft may be committed by taking and carrying away 
without the consent of the owner (even if he expects and 
affords facilities for the commission of the offence), any- 
thing which is not in the possession of the thief at the 
time when the offence is committed,' whether it is in. the 
possession of any other person or not. 

If the thing taken and carried away is on the body or 
in the immediate presence of the person from whom it is 
taken, and if the taking is by actual violence intention- 
ally used to overcome or to prevent his resistance, or by 
threats of injury to his person, property or reputation, 
the offence is robbery. 

* If the thing taken and carried away is for the first 
time rendered capable of being stolen by the act of taking 
and carrying away, and if the taking and carrying away 
is one continuous act, such taking and carrying away is 
not theft (except in the cases provided for in Articles 
410, 411, 412, 413, 416, 418, 419 and 433.) It seems that 
the taking and carrying away are deemed to be continuous 
if the intention to carry away after a reasonable time 
exists at the time of the taking. 

Illmtrations, 

(1.) ° A finds lost property, knowing who the owner is, and converts it. 
This is theft. 

(2.) " A, a trespasser, finds a dead rabbit lying in a wood, of which he 
is not the owner, and converts it. This is theft. 



» S. D. Art. 296. 

^ Cases in Illustrations. 

^ [Property in no one's possession is said to be constructively in the possession of its 
owner. The object of this fiction is to satisfy a supposed necessity for shewing that the 
taking in theft must be a taking out of some one'd possession. 

< It. V. Townley, L. R. 1 C. C. R. 315. 

» See Article 376 on " Finding." 

« Blades. V. Higgs, 11 H. L. C. 621.] 

u2 



292 A DIGEST OF 



[(3.) ' A carpenter finds nine hundred guineas in a bureau lent to him to 
repair, and converts them. This is theft. 

(4.) ^ A finds iron dropped from some canal boat or other, at the bottom 
of a canal, from which the water has been let off, and converts it. This is 
theft. 

(5.) '^ A instigates B, C's servant, to help A to steal money in C's desk. 
B tells his master, C. C, in order to detect A, tells B to so on with the 
business, and so arranges matters as to give A and B opportunities to 
break open the desk and take the money. This is theft in A. 

(G.) * A snatches a bundle from B's hand, and runs away with it. This 
is theft, and not robbery, as the violence used was only to get possession 
of the bundle. 

(7.) '^ A, at a mock auction, knocks down goods to B, who has not bid 
for them, pretending that she has. On B's offering to go, A says she shall 
not be allowed to go unless she pays fer the goods knocked down to her, 
which she does. This is theft at least, and perhaps robbery. 

(8.) ^ A snatches at a sword worn by B. A and B struggle for the sword, 
and A gets it. This is robbery. 

(9.) ' A, in cutting the string by which a basket is tied, with intent to 
steal it, accidentally cuts the wrist of the owner, who at the same moment 
tries to seize and keep it. The cut causes the owner to withdraw her 
hand, and the thief gets the basket. This is theft, but not robbery, 
because the actual violence was not intentional. 

(10.) ** A, B, and C surround D in such a way as to make resistance by 
D practically useless, and take his watch, witliout actual force or threat, 
This is robbery. 

(11.) "A mob of seventy persons demands money of a person, threat- 



' [Cartwright v. .ffreen, 8 Ves. 405. 

- li, V. lioiee, Bell. C. C. 9:5. In this case, Pollock, C.B., said the company had " suflScient 
possession to maintain an indictment for larceny." 'i je '' possession " in question could 
scarcely be called actual. 

^ It. V. Eggington, U East, P. C. 660. This was similarly decided by the Romans, " illud 
quaesitum est cum Titius servum Majvii solicitaverit, ut quasdam res domino subriperet 
et ad eum perferret, et servus id ad MiBvium pertulerit. Majvius autem dum vult 
Titium in ipso delicto deprehendre.permiserit servo quasdam res ad eum perferre.utrum 
furti an servi corrupti Judicio teneatur Titius an neutro? Et cum nobis super hao 
dubitatione suggestum cstetantiquorum prudentium super hoc altercationes perspeximus 
quibusdam neqae furti, neque servi corrupti actionem prasstantibus, quibusdam furti 
tantummodo ; nos hujusmodi calliditati obviam euntes per nostram dccisioncm sanximus 
non solum furti actionem sed et servi corrupti contra eum dari."— Institutes, iv. i. 8. 

* Six cases all to this effect are collected in 2 Russ. Cr. 90. 

" li. V. McOrnth, L. R. 1 C. C. R. 205. The case of It. v. Morgan, Dear. 395, is somewhat 
similar; see, too, R. v. Lovell, L. P. 8 Q. B. D. 185, which is to the same effect. 

« Davie's Case, 2 East, P. C. 709. 

' Jt. V. Edwards, 1 Cox, C. C. 32 ; 2 Russ. Cr. 90. 

^Hughes's Case, 1 Lewin,30l. '. \ ... ,^_ ,' 

» *!)'mo»'» (7a«e, 2 East, P. C. 731.] ~ ' "~ 



THE CRIMINAL LAW. 293 



[ening, if he refuses, to tear his mow of corn and level his house ; he gives 
it. This is robbery. 

(12.) ' A compels B to give him money, by threatening to accuse A of 
an infamous crime. This is robbery. > 

(13.) '^ A rips lead off a church, to the roof of which it is fixed, and car-' 
ries it away. This is not theft at common law though it is by statute. 

1 14.) - A cuts down timber or growing crops and carries them away 
immediately. This is not theft at common law, though it is by statute. 

(15.) ^ A, a poacher, kills a number of rabbits, hides them in a ditch on 
the ground of the owner of the soil on which they were killed, and 
returns several hours afterwards and carries them away, having all along 
intended to do so at hi ■ convenionce. Tliis is not theft.] 

(10.) * Against the wall of a passage leading from the street to certain 
assembly rooms, the lessor of the rooms places an " automatic box " so 
constructed that upon a penny piece being dropped into a slit of the box 
and a knob being pushed according to directions inscribed on the box, a 
cigarette is ejected. A drops into the slit a brass disc instead of a penny, 
and pushing the knob thereby obtains a cigarette. This is theft. 



•"'Article Bll. 

THEFT BY A SERVANT. — EMBEZZLEMENT. 

[Theft may be committed by converting, w^ithout th.e 
consent of the owner, anything of w^hich the offender 
has received the custody as the servant of the owner, or 
in order that the thing may be used by ihe offender for 
some special temporary purpose in the presence or under 
the immediate control of the owner or his servant. 

" "When a clerk, or servant, or person employed in the 
capacity of a clerk or servant, converts anything received 
by him from another person for his master or employer, 
he is deemed to have stolen it, but his offence is com- 
monly called embezzlement, and is distinguished from 

• See cases collected in 2 Hubs. Cr. 99-104. Some distinctions arise upon this which I do 
not notice, because this most odious crime is now dealt with specially by statute. See 
Article 388. 

- See authorities collected 2 Russ. Cr. (5th ed.) 209-10.] 
» B. V. Townkv, L. R. 1 C. C. R. 315.] 

* R. V. HaiuU, 16 Cox C. C. 188. 
^ S. D. Art. 297. 

" [See Chapter xxxv.] 



294 A DIGEST OF 



[theft for the purposes and in the manner mentioned in 
Chapter XXXV. 

Illustrations. 

(1.) ' A carter converts to his own use a cart which he is driving for his 
master. He commits theft. 

(2.) '^ A is employed by B to take pigs to C to be looked at, and to bring 
them back to B, whether C wishes to buy them or not. A sells the pigs 
to some one else, and keeps the money. This is theft. 

(3.) '' A sheriff's officer, in possession of goods under a writ of fi. fa., sells 
part of them. This is theft, as such a person is in the position of a servant. 

(4.) * A guest at a tavern carries off a piece of plate set before him to 
drink from. This is theft, because A had only a permission to use the 
plate for a special limited purpose. 

^Article 3*72. 

theft by a false pretence. 

Theft may be committed by fraudulently obtaining 
from the owner a transfer of the possession of a thing, 
the owner intending to reserve to himself his property 
therein, and the offender intending, at the time when 
the possession is obtained, to convert the thing without 
the owner's consent to such conversion." 

Illustrations. 

(1.) ' A fraudulently pers:-''des B to allow A to take two silver ewers to 
shew to A's master, to choose one if he pleased. A sells the ewers and 
keeps the money. This in theft. 

(2.) ** A, by pretending to be B, fraudulently obtains B's goods from C, 
a carrier, to whom they were entrusted by B. This is theft, as the carrier 
transferred the possession only. 



1 [Robinson's Case, 2 East, P. C. 565. 

"- Ji.y.Harvev, 9 C.& P. S53. ■ ' 

3 E<ulall'8 Case, 3 RaaaCr.Slh 
miale, P. C. 5')6.] 
6 S. D. Art. 298. 

^ [R. V. Uullin, L. R. 12 Q. B. D. 25, is the last case on this subject. 
' R. V. Davenport, 2 Russ. Cr. 147. 

8 R. V. Longstreeth, 2 Russ. Cr. 149-50 ; 1 Moody 137. There are a great number of other 
cases to the same effect. R. v, McKale, e.g., L. R. 1 C. C. R. 125.] 



THE CRIMINAL LAW. 295 



[(3.) ' A fraudulently bargains with B for the purchase by A of goods 
for ready money, and fraudulently jinduces B to let A have the goods, 
pretending that he is then about to pay B the price. A then takes away 
the goods, and does not pay the price. This is tiieft, as in such cases the 
purchaser does not mean to transfer the property till the money is paid. 

(4.) - A fraudulently obtains goods and money from a siiopkeeper by 
pretending to give him diamonds for them. This is not theft, as the 
shopkeeper means to transfer the property in the goods. 

(5.) •' A fraudulently induces B to give her ten sovereigns to conjure 
with, promising to bring back tiie ten sovereigns and £170, to which A 
says B is entitled. A carries off the ten sovereigns. If tiie ten sovereigns 
were to be returned, this is theft. If not, it is not theft, but is obtaining 
money by falgo pretences. 

(6.) * A, B's wife, by a forged order gets money standing to B's credit at 
B's bankers. This is not theft from the bankers, as the cashier had a 
general authority to part with the banker's money, and meant to do so.] 

(7.) ^ A at a race meeting makes a bet with B, the money for which B 
backs a particular horse being deposited witli A, who obtains possession, 
thereof fraudulently, never intending to repay it in any event, while B 
parts with the money with the intention that in the event of the horse 
winning it is to be repaid to him. This is theft, as there is no contract 
by which the property in the money can pass. 

(8.) "A, for tho purpose of keeping up a false pretence that he is the 
owner of certain land, of which he lias the title, by the promise that the 
same will be immediately returned, induces B, who has purchased from 
the real owner, to hand, him, on the delivery of the deed at the solicitor's 
office, certain moneys and notes purporting to represent the consideration 
expressed in the deed. A at the time intends to keep, and does keep, 
the moneys and notes. A commits theft. 

'■Article 3*73. 

theft by taking advantage of a mistake. 

[Theft may be committed by ^ converting property 
which the general or special owner has given to the 
offender under a mistake which the offender has not 

1 [Four oases to this effect are stated in 2 Rus.«. Cr. 157-9. 

* R. V. Bunce, 1 F. & F. 523. The ofTence would be obtaining goods by false pretences. 
» 7?. V. 7?unce, 1 F. & F. 523. 

^ 7f. V. Pnnee, L. R. 1 C. C. R, 154.] 

* Ji. V. Buchmanter, L. R. 20 Q. B. D. 182. 
« R. V. Ewina, 21 U. C. Q. B. 523. 

' S. D. Art. 299. 

* [R. V. Middlcton, L. R. 2 C. C. R. 38. Perhaps " by knowingly accepting with intent 
to convert " would be a more accurate way of expressing the effect of this case.] 



296 A DIGEST OF 



[caused, but which he knows to be such at the time when 
it is made, and of which ho fraudulently takes advantage. 
^ But it is doubtful whether it is theft fraudulently to 
convert prope.ty given to the person converting it under 
a mistake of w^hich that person was not aware when he 
received it. 

Illustrations. 

(1.) - A liaviiit^ to receive ten shillin<r8 from a post-oflice savings bank, 
produces to the clerk a warrant for tliat amount. Tlie clerk refarrinj? by 
mistake to another letter of advice, puts on the counter £8 IGs. lOd., which 
A takes away. This is theft. 

(2.) ' A gives a cabman a sovereign for a shillins. The cabman, seeing 
tliat it is a sovereign, keeps it This is theft of the sovereign. If he does 
not discover tlie mistake at once, but subsequently, it is doubtful whether 
he commits theft or not. 

(3.) ' A receives a letter containing a cheque. The letter is addressed, 
and the cheque is payable, to another person of the same name as A. A 
receives the letter innocently, but, on discovering the mistake made, 
converts the cheque to his own use. This is not theft. 

(4.) " A buys a bureau at a public auction, and finds in it property not 
intended to be sold, which he converts to his own use. This is theft. 



' [/?. V. A»hii-c!l (L. R. 16 Q. B. D. 100) was reserved in consequence of the expression of 
doubt in the text. Keogh meaning to lend Ashwell a sliilling, put into his hand a coin 
which at the time each believed to be a shilling. It was a sovereign, and Ashwell found 
out this an hour afterwards and kept it. The question whether this was larceny or not 
was twice argued, the last time before fourteen judges of whom I was one. Seven 
thought that it was, and seven that it was not larceny, and the result was that the convic- 
tion stood. In E. V. FlowevH (L. R. 16 Q. B. D. 643), the facts of which appear to me not 
distinguishable from those in li. v. Ashwell, several of the judges who affirmed the con- 
viction of Ashwell explained that they did not mean by that decision to throw doubt on 
the rule that an innocent talking succeeded by a fraudulent misappropriation is not lar- 
ceny. R. V. Anliwell must therefore be regarded as at most an authority for a case pre- 
cisely similar in all its circumstances, but even this is not clear. No doubting. O.v, Wind- 
sor (i H. L. C. 369) Lord Campbell treated H. v. Millin as an authority binding on the 
House, though it was decided in a case of equality of votes by the help of the maxim 
" praesumitur pro neganti " ; but I doubt whether this would apply to It. v. Ashwell. The 
Court being equally divided no judgment was given, and therefore the conviction was 
not quashed, but I do not see what more can be said. The maxim "'praesumitur pro 
neganti," it might surely be argued, would apply, if at all, to the view which negatived 
Ashwell's guilt. For myself I doubt its application to the case. On the whole there is 
strong evidence of the correctness of my opinion that the matter is doubtful, and I have 
accordingly left my statement as it was. 

- R. V. Middkton, L. R. 2 C. C. R. 38. 

3 Per eight Judges in R. v. Middkton, L. R. 2 C. C. R. at p. <5. 

* R. v. MncJdow, 1 Mood. C. C. 160 ; R. v. I>a»te», Dear. 640. 

6 Mcrrv V. Green, 7 M. & W. 623. There was a question in this case whether the bureau] 



THE dtlMINAL LAW. 29Y 



^ Article 3*74. 

theft by bailees. 

^ [Theft may be committed by the conversion by a bailee 
of the thing bailed, but this does not extend to any 
offence punishable on summary conviction. 

•'' This Article applies to bailments to infants incapable 
of entering' into a contract of bailment by reason of in- 
fancy (and it is submitted to bailments upon a void, and 
perhaps upon an illegal, consideration.) 

* Article 375. 
by and from whom theft :\iay be committed. 

Theft may be committed by a general owner to the pre- 
judice of a special owner upon a chattel in which both 
general and special ownership exist. 

'' Theft may be committcdby amember ofa *' co-partner- 



[was nof "iold with its contciitc. Ciirtwvioht v. Green, S Ve?. 405, is almost precisely similar. 
I am unablo to distinguish these cases from those on which Illustration (3) is founded. 
It is remarkable that in the judgments, and apparently in the argument (which is not 
reported), in li. v. Middleton, no notice is taken of any of these cases, nor are the cases 
about the bureaus referred to in R. v. Dmiei, which was decided, without argument, 
solely on the authority of li. v. Mucklow, Carttenght v. Green is not referred to in E. 
V. Mucklow, which was decided before Merry v. Green. Merry v. Green does not refer to 
R. V. Mucklow. The result is that the cases appear to contradict each other. This is also 
the view of Mr. Justice Cave in his judgment in if. V. AsAioeZi.] 

IS. D. Art 300. 

- R. S. C. c. 164, s. 4 ; [24 & 25 Viot. o. 96, s. 3. For a recent instance of this offence, see 
R V. O.venham, 40 L. J. (M. C.) 12-5. For a case in which it was doubtful whether or not 
there was evidence of a bailment, sec R. v. Ve Bankn, L. R. 13 Q. B. D. 29. See also R. 
V. Aahwell ;] R. v. Wynn, 16 Cox C. C. 231 ; R. v. Tweedy, 23 U. C. Q. B. 120 ; R. v. ^Stewart, 
43 U. C. Q. B. 574 ; R. v. Lebceuf, 9 L. C. J. 215 ; Gould v. Cownn, 17 L. C. R. 46. A depos- 
ited money with Bi "en attendant le paiemont qu'il pourrait fairo d'uno mdme sommo &, 
" C." B did not pay C, but appropriated the money to his own use. Held, that ho did 
not oo"'"iit theft, not being bound to pay the same pieces of money) but a similar sum to 
C ; R.Y. Berthinume, 3 M. L. R. 143. 

3 [R. V. MncDcnald, L. R. 15 Q. B. 1). 31.'?.] 

*S. D. Art.301. 

5 R. S. C. c. 164, s. 58. 31 & 32 Viot. c. 118. g. 1, 

" [A co-partnership means an association for profit. A Christian Young Men's Society 
is not a co-partnership, though its members may be joint beneficial owners ; R, v. Robson, 



298 A DIGEST OF 



[ship, or by one of two or more beneficial owners of any 
money, goods, effects, bills, notes, securities, or other pro- 
perty, to the prejudice of the other co-partners or bene- 
ficial owners. 

' Theft may be committed by a member of a corporation 
to the prejudice of that corporation upon a thing which 
is the property of the corporation. 

^ A married woman cannot commit theft upon things 
belonging to her husband. 

If any other person assists a married woman in dealing 
with things belonging to her husband in a manner 
which would amount to theft in the case of other persons, 
•'such dealing is not theft ' unless the person so assisting 
commits or intends to commit adultery with the woman ^ 
in which case he, but not she, commits theft.'* But this 
exception does not apply to the case of an adulterer or 
person intending to commit adultery, who assists a 
married woman to carry away her own wearing apparel 
only from her husband. 

' It is doubtful whether the mere presence and consent 
of a married woman on an occasion when some person 
deals with her husband's goods in a way which would 



L. li. 10 Q. B. D. HO.] In li. v. Liiv;nhnich\ IS L. C. J. 212, Ramsay, J., expressed tlie 
opinion that ;iii indictuieiit for larceny or cmbez/.lemeat would not lie against a partner 
under 32 & 33 Vict. (D.) c. 21, s. 38 (R. S. C. c. KM, s. 58). The opinion however does not 
appear to be well founded. See Tasch. Can. Oiin. Acts 405, and cases there cited. li. v. 
Smith, 11 Cox, C. (\ 511 ; R. v. Ii,ilU, 12 Cox, C. (\ 9(5 ; R. v. Rmirworth, 12 Cox. C. C. 
132 ; R. V. Rmlnr, 13 Cox, C. C. 17. 

' [Roscoe's Criui. Ev. 8ih ed. 052. This is Mr. Roscoe's inference from 1 Hale, P. C. 513, 
and appears to be correct. 

- 1 Hale, P. C. 514.] See 45 k 46 Vict. c. 75, s. 12. 

' U/ariwm'H Cam; 2 East. P. C. 55?. 

* R. V. Avmi, BM. m. 

'' R. V. 'Jol/rre, 1 Mood. 243 ; R. v. Tht.mvi'M, 1 Don. 549 ; R. v. Tolhn, Car. k Mar. 112 ; 
7?. V. Frnilirrstone.Dcnv. 3(i9 ; R. v. J. Mxtlcru, L. A-C. 611. A note to this case, 516-19, 
collects and reviews all the authorities on the subject. These cases wore ail decided be- 
fore the iMarried Women's Property Act, 45 & 40 Viet. c. 75, ss. 12. 10. 

•^ R. V. Fitrh, 1). ct IJ. 187. 

' R. V. Avery, Bell, C. C. 153. I submit that the wife's presence and consent in such a 
case would be no excuse. See the history of the growth of the doctrine in note to R. v. 
Mutturg,] 



THE CRIMINA.L LAW. 299 

[otherwise amount to theft excuses such person if he acts 
as a principal in the matter, and not as her assistant. 

Illusiralions. 

(1.) ' A bails goods to B for exportation, upon which A would become 
entitled to an exeiaption from a duty on the goods of 2s. 6d. a pound. B 
gives a bond to the Crown for exportation, and sends the goods in his 
barge to a ohip to be exported. A, to get the goods duty free, takes them 
from B's barge. A has stolen the goods from B, and it seems it would 
have been larceny if no bond had been given by B. 

(2.) '^ A gives his servant goods to carry to a certain place. A then dis- 
guises himself and robs his servant in order to charge the hundred with 
the robbery. This is robbery. 

■' Article 3*76. 

^FINDINa GOODS. 

A finder of lost goods who converts them commits 
theft if at the time when he takes possession of them he 
intends o convert them, knowing who the owner is, or 
having reasonable grounds to believe that he can be 
found ; 

Such a conversion is not theft, 

(a.) if at the time when the finder takes possession of 
the goods he has not such knowledge or grounds of be- 
lief as aforesaid, although he acquires them after taking 
possession of the goods, and before resolving to convert 
them ; or 

(6.) if he does not intend to convert the goods at the 
time when he takes possession of them, whether he has 

' [R. V. WilkinHon, 2 Russ. Cr. 243. 

■ Foster, VSi-i. i have not met with any caso in which a man has boon convicted of 
thoft for stealing a pled(?o (his own property) from a pawnbroker; but no doubt such an 
act would be tiicft. Hot'oro 31 k 32 Vict. o. IKi, s. -', a case occurred in whioli a part 
owner WIS convicted of stealing money from anotlier part ownori in whoso special custody 
it was, and who was solely responsible for its safety, the money being the property of a 
co-operative store ; It. v. Wilittir, L. ifc C. 77. The same point was decided, as to the 
property of a friendly society in R. v. Buroeu, L. & C. 299.J 

■'S. I). Art. 302. --•-' 

* [3 Hist. Cr. Law, 170.] 



300 A DIGEST OF 



[snch knowledge or grounds of belief or not at any 
time. 

If the circumstances are such as to lead the finder 
reasonably to believe that the owner intended to abandon 
his property in the goods, the dnder is not guilty of theft 
in converting them 

Ilhistrations. 

(1.) ' A finds a bank note, accidently dropped on the floor of his shop. 
He picks it up, intending to keep it for himself, whoever the owner might 
be, behoving at the time that the owner could bo found. This is theft. 

(2.) - A, a carpenter, to whom a bureau was entrusted to mend, finds 
money in it, the existence of which was obviously unknown to the owner 
of the bureau. A appropriates the money. This is theft, as A knew to 
whom the bureau belonged. 

(3.) ■' A finds iron in the bottom of a canal, from which the water had 
been let otT, and appropriates it. This is theft, as the fact that the iron 
was in the canal raised a presumption that it had fallen from a canal boa>, 
and that therefore the canal company had a special property in it- 

(4.) ^ A finds a sovereign in the road, and picks it up, intending io keep 
it, whoever the owner might be, but not knowing who he was, and having 
no reason to believe he could be found. This is not theft. 

(5.) ■' A finds a bank note in the road, with no mark upon it, and no 
circumstance to indicate who was the owner, or that ho might be found. 
Next day he hears who tho ow!ior is, and after that changes the note and 
keeps the money. This is not theft. 

(6.) " A finds a bank note in the road with the owner's name upon it, 
and takes it, intending at the time to return it to the owner, but after- 
wards changes his mind and keeps it for himself. This is not theft. 

(7.) ' A finds an apple, which appet^rs to have been thrown away in 



' [R. V. ^foore, L. S' C. 1. 

« Cartwrinht v. (Jrem, 8 Ves. 405 ; .sec, too, Mn-rv v Gri-fn, 7 M. & W. 023. 
' H. V. Roiri', Bell, 0. C. 93. This case wiis dooided on the (luostion of the possession of 
the omul compnny, hut it illitstriitcs the principle us to finding also. 

* 11. V. (Hiiih:, L. K. 1 C. C. K. 139. 

* R. V. Thurlxjin, 1 Don. 387. 

" PntU'ii'ii Cane, '2 Uen. 35;!. The illustration does not represent the actual fnots in 
I'rcslon'n Cdv^, but a stjito of facts which the Court said might have exL^ted and upon 
which tho jury might have convicted him under tho terms in which the very able judgo 
who tried the case (tho late M. D. Hill, Hecordor of Birmingham) dirootcd them. 

' Per Rolfu, B., in A', v. I'vturn, 1 C. k K. 245; and see tho summinR up of Cookhurni C. 
J., in R. V. Glude, L. H. 1 C. 0. R. UO-l. In some of the oases on this subject a distinc- 
tion is taken between property absolutely lost, and property only mislaid ; sec R. v. Witt, 
Dear. 402. It would appeun however, that the only roul dilTcrence is that in tho latter] 



THE CRIMINAL LAW. 301 



[a road, and eats it. If a reasonably believed that the apple had been 
abandoned by its owner, this is not theft. 

^ Article 3*7*7. 

conversion after a taking amounting to trespass. 

If a person takes into his custody any chattel belong- 
ing to any other person in a way which constitutes an 
actionable wrong to that person and afterwards converts 
it, he commits theft, although he may not have intended 
to convert it when he took it into his custody. 

Illustrations. 

(1.) - A, having a flock of lambs in a fieM, drives them out, and negli- 
gently drives away with them a lamb belonging to B which happened to 
be there. At the time of driving away the lamb A does not intend to 
convert it, but afterwards, on discovering what had happened, he sells the 
laiob and keeps the money. This is theft. 

(2 ) •' A takes home B's umbrella from a club by mistake, and having 
afterwards found out that it is B's, converts it. A commits theft. 

* Article 378. 

conversion after innocent taking. 

If a person innocently in any way not referred to in 
any of the preceding Articles, has the possession of any 
chattel, and converts such chattel, he does not commit 
theft, although such chattel may have been entrusted to 
him by the owner, or may be the proceeds of something 
which was entrusted to him by the owner for the owner's 



[cose tho (indnr must know that the owner may be found. The distinction w.v8 ujoful as 
II step towards modifying tho generality of tlio rule laid down by the old text writers : see 
e.g. 1 Hawkins, P. C 142. " One who finds such goods as I have lost and converts them 
to his own use, aninw furandi, is no felon."] 

' S. I). Art. :103. _ 

=" [II. V. Uilc, Dear. 149. 

'' Per Pollock, C.B., and Parke, B.. in Riley's Ciue, p. 150 ; see the question of Martin, 
B., in I'rcHtun'g Cose. 2 Den. 360.] 

<S. D. Art. 30i. . 



302 A DIGEST OF 



[benefit, or for the benefit of some person other than the 
person so entrusted, unless such conversion falls within 
the provisions of Chapter XL. or Article 383. 

Illustrations. 

(1.) 1 A assigns his goods by deed to trustees for the benefit of his 
creditors. Tlie trustees do not take possession, but leave A'a possession 
undisturbed. A makes away with the goods, intending to deprive his 
creditors of them. Tliis is not theft. 

(2.) - B's house being on fire, A takes B's goods to A's house for protec- 
tion, B acquiescing as to some of them. A's intention at the time is to 
keep tliem for B, but A afterwards cliangee his mind and converts them. 
This is not theft. 

(3.) ^ B gives his broker A a cheque to buy Exchequer bills. A buys 
Exchequer bills for B with part of the proceeds of the cheque and 
absconds with the rest. This is not theft. 

(4.) *B, a boy unable to read, finds a cheque and gives it to A, asking 
A to tell him what it is. A, on various false pretences, withholds it from 
B in hopes of getting a reward from the owner. A has not stolen the 
cheque. 

(5.) '"' A, the acting treasurer of a local Church Missionary Society, 
whose duty it is to deposit or invest the moneys received by him on 
account of the society, converts them. This is not theft. 

iG.) "A is the treasurer of a money club, the nature of which is that 
certain persons deposit a weekly sum and are liable to fines in default. 
Loans miglit be made on interest to the members at A's discretion. Tiie 
total amount, including interest on the loans, but subject to small deduc- 
tions, to be divided amongst the members at the end of the year. A con- 
verts the balance in his hands at the end of the year. This is not theft. 



' Ui. V. Pratt, Dear. 360. 

' Leigh's Cane, 2 East, P. C. 694-5. This case seems to shew that if A were to find a 
bank note for £1000, which he knew to be B's, and were to take it up intending to give it 
to li, and were afterwards to be tempted to go to a gaming house and were there to stake 
and lose it, he would not commit theft, and I believe that such is the law. 

^ Wahh'n Cane, 2 Lea. 10^4. Wal&h's Cane was the occasion of the first of a series of sta- 
tutes now represented by 24 k 23 Vict, c. 96, ss. 75, 79. See chapter XL, 

* R. V. V. Gardner, L. & C. 243. 

" E. V. Gavett, 8 Cox, C.C. 368, and 2 Ruse. Cr. 136-7, This would not even now be an offence. 
As th e offender had not to pay over or return the specifli, jins entrusted to him, ho was 
not a bailee j and as there was no express trust of the money created by an instrument in 
writing, he was not within the fraudulent trustee clauses of the Larceny Act. 

•Norisit any ofTenoeat all. Ji, v. Hatmll.L. &C.5S,] See Art. 483. ',~'- 



THE CRIMINAL LAW. 303 

^Article 3Y9. 

OBTAINING BY FALSE PRETENCES NOT THEFT. 

[It is not theft to persuade any person by fraud to trans- 
fer the property of any chattel to any person, though such 
an act may be an offence under Chapter XXXIX. 

^ Article 380. 

tmeporary taking is not theft. 

^ It is not theft to deal with anything in any of the 

ways in which theft can be committed with the intention 

only to obtain the temporary use thereof, and not with 

the intention to convert it permanently to the use of some 

person other than the owner ; but if a thing is so dealt 

with with the intention of totally depriving the owner 

of his property in it, the returning of the goods after a 

temporary use of them will not prevent the act from 

amounting to larceny. 

Ilhistrations. 

(L) * A takes B's horse without B's lowe, rides about on it to find some 
cattle, and then turns it loose on the common. Tliis is not theft. 

(2.) " A ride6 B's liorse, without B's leave, to a place thirty miles off, and 
leaves him at an inn, saying he will call for him. A does not call for the 
horse, but pursues his journey on foot. The jury must consider whether 
A meant permanently to deprive B of his horse, or only to make that par- 
ticular journey on him. In the first case A's act is theft, in the second, not. 

" Article 381. 

taking tame ANIMAL WANDERING NOT THEFT. 

^ It seems that it is not theft to take and carry away an 

1 S. D. Art 305. 

2 S. D. Art. 306. 

•' [See Illustrations, and for the latter part of the Article note to R, v. Plietheon, 9 C. & 
P. 554, and Ji. v. Trclilcock; Dears. & B. C. C. 453. 

* 1 Hale, P. C. 509. 

'' It. V. Philipim, 2 East, P. C. 662 ; E. y. Addi», 1 Cox, C. C. 78, is to the same effect.] 
« S. D. Art. 307. 

• [I Hawkins, P. C. p. 149, oh. 19, 8. 40.] 



304 A DIGEST OF 



[animal which, though really tame, is wandering at a dis- 
tance from its habitation as if it were wild, and when it 
is not known to be tame by the person who takes and 
carries it away. 

'Article 382. 
evidence as to theft. 

The inference that property allr id to have been stolen 
has in fact been stolen may be drawn from other facts than 
the fact that it is identified by a witness. 

The inference that an accused person has stolen pro- 
perty, or has received it knowing it to be stolen, may be 
drawn from the fact that it is found in his possession 
after being stolen, and that he gives no satisfactory 
account of the way in which it came into his possession. 

Illustration. 

(1) ^ A is seen coming out of a lower room in a ■warehouse in the London 
Docks, in the floor above which a quantity of pepper is deposited, some 
being loose on the floor. A's pockets are full of pepper. On being stopped 
he throws down the pepper, and says, " I hope you will not be hard upon 
me." A may be convicted of stealing the i^epper, although no popper was 
misse 1 from the warehouse and the pepper on A was not otherwise iden- 
tified than by being shown to bo similar to that in the wareliouse.] 



1 S. D. Art. 308. 

- [/?. V. Burton, Dear. 28?. In this case Maule, .!., characteristically remarked. '' If a 
man go into the London Docks sober, without means of getting drunk, and comes out of 
one of the ctllars very drunk, wherein are a million gallons of wine, I think that would 
be reasonable evidence that he had stolen some of the wine in that cellar, though you 
could not prove that any wine was stolen, or any wine was missed." 

Aa to the rule as to recent possession of stolen goods, many cases have been decided on 
the siibjcct (see 2 Russ. Or. 275-81), but they seem to me to come to nothing but this, that 
every case depends on its own circumstances, and that the nature of the thing stolen, the 
length of the interval between the theft and the possession, and the behavior of the 
accused may all vary the force of the evidence indefinitely. The unexplained possession 
of a single stolen coin by a shopkeeper doing a large business in whose till It was found 
ten minutes after the theft, would prove nothing. The finding of a lost will ten years 
after its loss, locked up in the strong box of a careful person deeply interested in its tem- 
porary concoalmeii , and peculiarly jealous of his strong box, would prove a graat deal. 
Between these extremes there may be infinite degrees in the weight of such evidence.] 



THE CRUIINAL LAW. 305 



CHAPTER XXXV. 
' embezzlement by clerks and servants. 

- Article 383. 

embezzlement by clerks and servants — who are 

servants. 

•^ [When a clerk or servant, or person employed m the 
capacity of a clerk or servant, commits theft by convert- 
ing any chattel, money, or valuable security delivered to 
or received, or taken into possession by him for or in the 
name or on account ' of his master or employer, his 
offence is called embezzlement. 

Such a conversion is not a criminal offence (except in 
the cases hereinafter specially provided for) unless the 
person who converts stands to the owner of the property 
converted in the relation of a clerk or servant, or person 
employed in the capacity of a clerk or servant. 

'' It is a question for a jury whether a person accused 
of embezzlement is a clerk or servant or not. 

" A clerk or servant is a person bound either by an ex- 

1 [."? Hist. Cr. Law. 151-6. Cf. Draft Code, s.-=. 219, 250, 258.] 

- S. D. Art. 309. 

■' [Founded on 21 k 25 Vict. c. 96, s. 08. See Art. 429.] R. S. C. c. 104, s. 52 ; R.y. Pa- 
quct, 2 L. N. 140 ; li. v. Chnrest, 9 L. N. 114 ; R. v. Topple, 3 R. &. C. 566. An assistant 
overseer appointed under 59 (}eo. 3, c. 12, s. 7, but not for the |)uri>ose of collecting or re- 
ceiving money, cannot bo convicted of embezzlement as a clerk or servant of tlie inha- 
bitants within 24 k 25 Vict. c. 96, s. 68 ; ]{. v. Coley, 16 Cox, C. C. 226. This decision is 
liowever (]ue.«tioned in a note at p. 2^0 of the report, .is being difiicult to reconcile with 
R. V. Hall, 1 Moo. C. C. 474. A school trustee whose duty docs not require or au- 
thorize him to receive the money of tlie Board of Trustees cannot embezzle such 
moneys ; Ferris v. Inein, 10 U. C. C. P. 116. 

* [For an instance in which money was received in the name of one person and on the 
account of another, see R. v. Thorpe, D. k B. 562. 

^ Bramwell, B., doubted as to this in Walker'n Case, D. & B. 602; but see R. v. Negtu, 
L. R. 2 C. C. R, 34 ; i?. v. Ttte, L.&C.3S- R. v. May, L. k C. 13. 

»i;. V. Nem>, L. R. 2 C. C. B. 37 (judgment of Blaokbum, J.) ; R. v. TUe, L. &. C. 33.1 



30G A DIGEST OF 



[press contract of service or by couduct ' implying such 
a contract to obey the orders and submit to the control 
of his master in the transaction of the business which it 
is his duty as such chn-k or servant to transact. 

A man may be a clerk or servant 

" although he was appointed or elected to the employ- 
ment in respect of which he is a clerk or servant by some 
other person than the master whose orders he is bound 
to obey ; 

■' although he is paid for his services by a commission 
or share in the profits of a business ; 

* although he is a member of any co-partnership, or is 
one of two or more beneficial owners of the ' property 
embezzled ; 

'' although he is the clerk or servant of more masters 
than one ; 

" although he acts as clerk or servant only occasionally, 
or only on the particular occasion on which his offence 
is committed. 

"^ But an agent or other person who undertakes to 
transact business for another, without undertaking to 
obey his orders, is not necessarily a servant 

because he receives a salary ; or 

because he has undertaken not to accept employment 
of a similar kind from any one else ; or 

because he is under a duty (statutory or otherwise) to 
account for money or other property received by him. 

It seems that in order that a clerk or servant may be 
within the meaning of this Article it is necessary that the 
objects of his bcrvice should not be criminal, but a man 

» [/?. V. Fo«Ke». L. R. 2 C. C, R. 152.] 
- Illustration (1). 
■■' Illustrations (2) and (3). 
* 31 A 32 Vict. c. 116, s. 1.] R. S. C. c. 164, s. .58. 

'• [" Money (goods, or effects, bills, notes, securities) or other property."] The words in 
parentheses are not in the Canadian Act. 
'■' [Illustration (.3). ' , * 

' Illustration (4). ^ . __ _ ■ . . . .i V 

8 Illustrations (6)-(9).] " ' ~^"T~~J "'' " 



THE CRIMINAL LAW. SOT 

[may bo such a clerk or servant although the objects of 
his service are in part illegal as being contrary to public 

policy. 

Illustrationg. 

(1.) ' A, elected collector of rates by the vestry of a parish, and having 
to obey a committee of management, is the servant of the committee of 
management. 

(2.) - A was cashier and collector to B at a salary of £150 a year, besides 
12A per cent on the profits of the business. A was not to be responsible 
for losses and had no control over the management of the business- A 
was a servant to B. 

(3.) ' A took orders for B and collected money for him according to a 
journey book given to liim by B, showing the sums to be received and 
the persons from whom they were due. A was paid by a commission. A 
was clerk to B, though he was principally employed by C, D, and otliers. 

(4.> * A was employed by B to go on messages when A had nothing 
else to do, and B was to give A whatever B chose. A was B's servant. 

(5.) ' A, a drover, was employed by B, a farmer, on one single occasion 
to drive a cow and calf to a person to whom they were sold, and to bring 
back the money. A was B's servant. 

(6.) " A, the master of a charity school, on one particular occasion con- 
sents to get a subscription to the funds of the school, at the request of B the 
treasurer of the committee of management by which A was appointed, 
and which managed the school. It was no part of A's duty as master to 
collect any subscriptions. In getting the subscription A was not the 
servant of B. 

(7.) ' A, a drover, is employed by B, a grazier, to drive oxen to London, 
to sell them on the road, if possible, and to take those remaining unsold 
to a salesman in Smithfield. X is not B's servant. 

(8.) ** B engaged A, who kept a refreshment house at Birkenhead, to get 
orders for manure manufactured by B. A was not bound to give any 
definite amount of time or labor to the purpose. The manure was sent 



> [R. V. Callahnn, 8 C. & P. 154. See now 12 & 13 Vict. c. 103, s. 15, which applies also to 
assistant overseers ; It. v. Oullum, L. R. 2 C. C. R. 29 ; and see B. v. Jenaon, 1 Moo. C. 
C. 434. 

- McDonald's Case, L. & C. 85. 

' R. V. Carr, R. & R. 198. A doubt was expressed as to this last point leferred to in 
this illustration in R. v. Ooodbody, 8 C. k P. 665; but R. v. liattih 2 Moo. C. C. 257, and 
R. V. Tite, L. & C. 29, uphold R. v. Garr and recognize the principle that a man may be 
servant to several persons at onoe. 

* R. V. Spencer, R. & R. 299. ' 

''R.v. Hughee,! Moo. C.C.S70. _1 ^^ _,_ .= -a-- r- - - — 

« R. V. NeUleton, 1 Moo. C. C. 259. 

' R. V. Goodbody, 8 C. & P. 665. The difference between this case and R. v. Hughes in 
Illustration (5) lies in the power of sale. 

» /f. V. Wai/ter, D. & B. 600.] 

^. ...... .-; I--:. X2 



308 A DIGEST 



[to stores under A's control, and of which he was tenant, though B paid 
the rent, and was forwarded by A to the customers. A was paid £1 a 
year salary and a commission. A was B's agent, not his servant. 

(9.) ' A was engaged by B to solicit orders. He was to be paid by com- 
mission. He was at liberty to apply for orders whenever he thought 
most convenient, but was not to employ himself for any other person than 
B. A was not B's servant. 

(10.) - The treasurer of a friendly society under 18 & 18 Vict. c. 63, is not 
the servant of the trustees of the society, though by sec. 22 he is bound 
before seven days after being required by the trustees (in whom the 
money is vesteil by sec. 18) to account to the trustees. 

(11.) ■' A parish clerk is not a servant, because he is not under the orders 
of any particular person. 

(12.) ' The chamberlain of the commons of a corporation chosen and 
sworn in at a court, but whose duty it is to superintend the commons and 
to receive certain duties which he kept till the end of the year, when his 
accounts were audited and the balance paid over to his successor, is not a 
servant, becuuse he holds a distinct office, and is not bound to pay at any 
time. 

(13.) •* Tlie servant of a trade union may be convicted of the embezzle- 
ment of its funds, although some of its rules are void as being in restraint 
of trade. 

(14.) " The servant of a society, the members of which took an unlawful 
oath under 37 Geo. 3, c. 123, and 52 Geo. 3, c. 104, cannot be convicted of 
embezzlement for misappropriating the funds of the society. 



1 [li. V. Nraiw, L. R. 2 C. C. R. 34. 

- R. V. Ttiree, L. R. 1 C. C. R. 177. A treasurer would appear, as a rule, to be rather a 
banker than a servant, but every case depends on its special circumstancef!. In ^. v. 
Murphy, 4 Cox, C. C. 101, the prisoner was both clerk and treasurer (see (he explanation 
of this case given in R. v. Tyree). In R. v. Welch (1 Den. 199), the circumstances were 
very similar to those of R. v. Turee, and Coleridge, J., appears to have been satisfied that 
the prisoner was a servant, and did not reserve the point. It is singular that this o- e is 
not referred to in 7?. v. Tyree. 

■' R. V. Burton, 1 Moody 237, explained in Williams v. Stott, 3 Tyrw. 688 ; 1 Cr. & M. 
675. 

* Williaim v. Stott, 3 Tyrw. 688 ; 1 Cr. & M. 676. 

■'• R. v. Stdiner, L. R. 1 C. C. R. 230. In the argument on this case both sides assumed 
that if the society was criminal the conviction could not bo sustained. Cockburn, C.J., 
said, " It is unnecessary to consider how far the criminal purposes of a society might 
affect its title to property." As stolen property may be stolen from the thief who stole it 
(1 Hale, P. C. 507), the question might deserve consideration if it ever arose. R. v. Hunt, 
in the next illustration, is in point, but it is only a niti pritw Jeoisicn.] See Art. 483 
note. 

« [^ . V. Hunt, 8 C. & P. 642, by Mirehouse (Com. Serj.), after consulting Bosanquet and 
Coleridge, JJ.] 



THE CRIMINAL LAW. 309 

^Article 384. 

the property embezzled must be the master's. 

[The offence of embezzlement cannot be committed by 
the appropriation of property which does not belong to 
the master of the alleged offender, although such pro- 
perty may have been obtained by such alleged offender 
by the improper use of the property entrvisted to him by 
his master, but property which does belong to the master 
of the offender may be embezzled, although the offender 
received it in an irregular way. 

Illustrations. 

(1.) -B, the high bailiff of a county court, appointed A a bailiff. By 
rules of practice it was A's duty to pay over moneys levied by him to the 
registrar. A received certain money and appropriated it, the money being 
the money of the registrar and not B's, whose servant (if any one's) A was. 
This was not embezzlement. 

(2.) ^ A railway company contracted with B to deliver the railway's 
coals in the railway's carts, B finding horses and carmen, but the terms 
of the contract were such as to make the carmen, after receiving the 
money, answerable to the railway. A, a carman, received money for 
coals and appropriated it. This was not embezzlement, as the money 
was not the money of B, but of the railway company. 

(3.) ^ A, a bargeman, was forbidden by B, his master, to take a cargo 
on his barge on part of a particular voyage. A took the cargo, appro- 
priated the freight to himself, and denied the receipt of it when ques- 
tioned by his master. The person from whom he took the cargo and 
freight knew of no one in the transaction except A. This was not embez- 
zlement, as the freight did not belong to B. 

(4.) " A, entrusted with a cheque for B, gets it cashed by a friend, and 
not, as was the regular course, at a bank, and appropriates the proceeds. 
This is embezzlement. " • 



' S. D. Art. 310. 

- [li. V. Glovir, L. & C. 466. 

■' li. V. Jiiavtiiciit, Dcnr. 270. Tlic circuiiutaDccs of this case ore at first sight identical 
withthofcof J{.\. 'J'lioiije.D. & B. £62, in whitli llic conviction wasoflBrnicd; but the 
special teinis oi' Uie contiact, I sujipete, moke the difference. It is singular that Ji. v. 
lieavmont is not referred to in J!, v. Thui2>et otherwise than in a note by the reporter at 
the end of the case. _ .- — — -_^- — 

^ ye V. C«;/tt;H, L. R. 2 C. C. R. 28. 

'' 7^ V. (7fl;e 46 L. J. (M. C.) 134.] 



310 A DIGEST OF 



^ Article 385. 

DISTINCTION BETWEEN EM:'EZZLEMENT AND OTHER 
KINDS OF \HEFT. 

[The distinction between the embezzlement by a clerk 
or ser\ ant and other kinds of theft is, that in other kinds 
of theft the property stolen is taken out of the possession 
of the owner, whereas ^n embezzlement by a clerk or ser- 
vant the property embezzled is converted by the offender 
whilst it is in the offender's possession on account of his 
master and before that possession has been changed into 
a mere custody. 

Illwtrations. 

(1.) - A, B's servant, has authority to take orders, but none to send out 
goods from B's shop. A takes an order for pickles and treacle, enters in 
his master's book an order for pickles only, takes from the shop and 
delivers to the customer both pickles and treacle, and keeps the price of 
the treacle. This is a theft of the treacle, as A had no authority to deli- 
ver it, but it is not an embezzlement of the price, as it was not received 
on B's account, but in fraud. 

(2.) •' A, a clerk to a navy tailor, goes on board a man-of-war with 
clothes delivered to him by his master to sell to the marine artillerymen 
on board. He afterwards enters as a seaman on another ship, carrying 
off the clothes. A commits theft, and not embezzlement. 

(3.) * A, the manager of a branch bank, has in his office a safe, the pro- 
perty of the bank, and of which the bank manager keeps the key at the 
head office. A's duty is to put money received during the day into this 
safe. He takes part of it out of the safe and applies it to his own pur- 
poses. This is theft, and not embezzlement. 

(4.) •'' A's duty is to ^et bills accepted and discounted for his master. A 
having got a bill accepted for his master, lays it with other bills on his 
master's desk. He then takes it from his master's desk, gets it cashed, 
and appropriates the money. This is theft. 



1 S. D. Art. 311. 

* [7?. V. Wihon,9 C. 4!k P. 27. The prisoner having been indicted for embezzlement 
escaped. 

3 Ji.v. Hawkins, 1 Don. C. C. 584. 

♦ R. V. Wright, D. k B. 431.] R. v. Hmnemi, 35 U. C. Q. B. 603. 
6 [Chipchaae't Case, 2 Lea. 699.] 



THE CRIMINAL LAW. 311 



[(5.) ' A receives from his master B.doeli warrants enabling him to get 
property from the docks, and is induced by B to carry the property to 
London. A on the road appropriates part of the property. This is theft. 

(6.) - A, B's servant, is sent by B to f^tcli 240 quarters of oats, which B 
has purchased, and which are lying on a vessel in the Thames. Whilst 
the oats are being measured into B's barge, A causes five quarters to be 
put up in sacks and set aside, the rest being loose. A then sells the sacks 
of oats for his own benefit froui tiie vessel, and before they were put into 
the barge.' This is theft. 

(7.) ' A, B's servant, gets plate for his master from a silversmith, puts 
it in B's plate-chest, and then takes it out and appropriates it. This is 
theft. '(If he appropriates it before he puts it into the plate-chest, he 
commits embezzlement.) 

(8.) " A, B's servant, receives from C, a fellow-servant, £3 of B's money, 
and appropriates 10s. to his own use. This is not embezzlement (but is 
theft). 

(9.) ' A, a banker's clerk, whose business it is to receive loles o^er the 
counter and put them in a drawer, receives a note for £100 from the ser- 
vant of a customer, and appropriates it to himself without putting it into 
the drawer. This is not theft at common law, but is embezzlement. 



^Article 386. 

evidence as to embezzlement. 

" The inference that a prisoner has embezzled property 
by fraudulently converting it to his own use, may be 
drawn from the fact that he has not paid the money or 
delivered the property in due course to the owner ; or 

1 [/?. V. iVonjai, 1 Cox, C. C. 95; 2 Russ. Cr. 313. 

2^Am»am'»(7n8e,2East,P. C. 569. ; ' 

3 2 Russ. Or. 314. 

■• Per Coleridge, J., in U. v. Wntin, 2 Den. 14. 

^ A dictum of Wilde, C.J.,in U. v. Watts seems to say the opposite, but if this were so, 
the whole distinction between embezzlement and theft would be taken away (as no doubt 
it ought to bo as a matter of common sense). Soo Mr. Greaves' remarks on Wilde, C. J.'s 
dictum and on the whole case of R. v. Wntts, 2 Russ. Cr. (4 ed.) 399, notes (b) and (o). 

« 7?. V. Murray, 2 Buss. Cr. (5th ed.) 314 ; 5 C. & P. 145; 1 Moody, 276. 

' Bazeleii's Oaw, 2 Lea. 835 ; 2 East, P. C. 571. Tliis caao occasioned the passing of the 
39 Geo. 3, c. 85, now ro-enacted in substance by 24 & 25 Vict. c. 96, 8. 68.] R. 3. C. c. 164, 
S.52. 

8S. D. Art. 312. 

" [These facts are the common evidence of embezzlement given in every instance, and 
require no illustration. That the non-payment is only by way of delay, the false account- 
ing a mistake, &c., arc common topics of defence.] i{. v. Gamminga, 10 U. C. Q. B. 15. 



312 A DIGEST OF 



[from the fact that he has not accounted for the money 
or other property •which he has received ; or 

from the fact that he has falsely accounted for it ; or 

from the fact that he has absconded ; or 

' from the fact that upon the examination of his accounts 
there appeared a general deficiency unaccounted for ; 

^ but none of these facts constitutes in itself the offence 
of embezzlement, nor is the fact that the alleged offender 
rendered a correct account of the money or other property 
entrusted to him inconsistent with his having '* embez- 
zled it.] 

^ [li.v. Orove, 1 Moody, 447; 2 Iluas, Cr. 377. Tho authority of this ease, decided by 
eight judges to seven, has been doubted. Sooili. v.Monh.'Dcar. 626,039; sue, too, B. v. 
Lambert, 2 Cox, C. C. 309 ; H. v. Llovd Jones, 8 C. & P. 288 ; J{. v. Chapman, 1 C. & K. 119 
11. y. Kino, 12 Cox, C. C. 73 ;] Jl. v. Glaxt, 1 L. N. 41. 

- IE. V. Hodgson, 3 C. & P. 422 ; II. v. Winnall, 5 Cox, C. C. 320. Mr. Greaves' note on 
this case disapproves of tho summing-up of Erie, J., on what appears to mo to bo a mis- 
conception of its purport. Mr. Greaves' view tliat tiio fraudulent conversion constitutes 
tho offence, and that everything else is only evidence of it is obviously correct; but I 
think that Erie, J., did not mean to say anything inconsistent with this. Wilful false 
accounting is now a substantive offence. See 33 & 39 Vict. c. 21, g. 2, and S. D. Article 
352. 

a Ji. V. Guelder, Bell, C. C. 284 ; J{. v. Lister, D. & B. 118.] 



THE ClUMINAL LAW. 313 



CHAPTER XXXVI. 

' ROBBERY AND EXTORTION BY THREATS. 

^ Article 387. 

ROBBERY. 

■* Every one is guilty of felony and liable to imprison- 
ment for life who, 

(a.) being armed with an offensive weapon or instru- 
ment, robs, or assaults with intent to rob, any person ; 

(&.) together with one or more other person or persons 
robs, or assaults with intent to rob any person ; or 

(c.) robs any person, and at the time of, or immediately 
before, or immediately after, such robbery, wounds, beats, 
strikes or uses any other personal violence to any 
person. 

* Every one is guilty of felony and liable to fourteen 
years' imprisonment who robs any person. 

' Every one is guilty of felony and liable to three 
years' imprisonment who assaults any person with in- 
tent to rob. 

" Article 388. 

extortion by threats. 

Every one is guilty of felony and liable to imprison- 
ment for life, in cases (a.), {b.) and (c.) and for two years' 
in case who 

1 [3 Hist. Cr. Law, 149-150. Draft Code, Part XXVII., s.«. 288-296. 
" S. D. Art. 313. For definition of robbery, and illustrations as to the nature of the fear 
and violence involved, gee Article 370.] 
•' R. S. C. 0. 164, s. 34 ; 24 A: 25 Vict. c. 96, s. 43. 
♦ R. S. C. c. 164, s. 32 ; 24 & 25 Vict. c. 96, s. 40. 
'' R. S. C. 0. 164, s. 33 ; 24 & 25 Vict, o- 96, s. 42. 
« S. D. Art. 314. • 



314 .1 DIGEST OF 



(«.) ' sends, ddivors or utters, or directly or indirectly 
causes to be received, knowing the contents thereof, any 
letter or writing, 

(i.) demanding of any person with menaces, and with- 
out any reasonable or pro1)able cause, any property, 
chattel, money, valuable security or other valuable thing; 

(.ii) " accusing or threatening to accuse or cause to be 
accused any other person of any crimo punishable by 
law with death, or imprisonment for not less than seven 
years, or of any assault with intent to commit any rape, 
or of any attempt or endeavor to commit any rape, or of 
any infamous crime as herein defined, with a view 
or intent, in any of such cases, to extort or gain, by 
means of such letter or writing, any property, chattel, 
money, valuable security or other valuable thing from 
any person ; 

{b.) ' accuses, or threatens to accuse, either the person 
to whom such accusation or threat is made or any other 
person, of any of the infamous or other crimes herein 
mentioned, with the view or intent, in any of the cases 
last aforesaid, to extort or gain from such person so 
accused or threatened to be accused, or from any other 
person, any property, chattel, money, valuable seciirity, 
or other valuable thing ; 

(c.) ' with intent to defraud or injure any other person, 
by any unlawful violence to or restraint of, or threat of 
violence to or restraint of, the person of another, or by 
accusing or threatening to accuse any person of any 
treason, felony or infamous crime, as herein defined, 
compels or induces any person to execute, make, accept, 
indorse, alter or destroy the whole or any part of any 
valuable security, or to write, impress or afiix his name, 

' R. S. J. c. 173, s. 1 ; 24 A 25 Vict. c. 96. p. 41. The words " without any reasonable or 
probable cause " apply to the demand not to the menaces ; 1{. v. Mmon, 21 U. C. C.P 5S. 

- R. S. C. c. 173, s. S; 24 & 25 Vict, e 06, s. 56. 

" R. S. C. c. 173, s. 4 ; 24 & 25 Vict. c. 96, g. 47. An attempt to compel a person by 
threats to buy a mare is within this section ; R. v. Redman, L. R. 1 C. C. R. 12. 

* R. S. C. c. 173, 8. 5; 24 & 25 Vict. c. 96, s. 48. 



77/A' CIUMINAL LAW. 315 



or the name of any othor person or of any company, firm 
or co-partnership, or the seal of any body corporate, com- 
pany or society, upon or to any paper or parchment, in 
order that the same iriay be afterwards made or converted 
into or used or dealt with as a valuable security ; 

{d.) ' with menaces or by force, demands any property, 
chattel, money, valuable security or other valuable thing 
of any person, with intent to steal the same, whether 
the thing demanded is received or not. 

- The crime of buggery, committed either with man- 
kind or with beast, and every assault with intent to com- 
mit the said crime, and every attempt or endeavor to 
commit the said crime, and every solicitation, persuasion, 
promise or threat offered or made to any person whereby 
to move or induce such person to commit or permit the 
said crime, is deemed to be an infamous crime within 
the meaningof this Article. 

^ Every species of parting with any letter herein 
mentioned to the end that it may come, or whereby it 
comes, into the hands of the person for whom it is in- 
tended is deemed a sending of such letter. 

' It is immaterial whether the menaces or threats here- 
inbefore mentioned are of violence, injury or accusation, 
to be caused or made by the offender or by any other 
person. 

1 R. S. C. c. 173. s. 2; 24 k 25 Vict. c. 96, 8. 45. [R. v. Otiden (L. k C. 288) shows what 
sort of menaces fall within this section. A obtained five shillings from 13 by pretending 
to be a bailiff, and threateiiinK to distrain. It was held that his guilt depended on the 
question wiiether or not he made the threat in such a way as to " unsettle B's mind, and 
take away from his acts that element of free voluntary action which alone constitutes 
consent."] A demand with menaces of money actually due id not a demand with intent 
to steal : ]{. v. Julmxon, 14 U. C. Q. B. 509. [R. v. Rob' chon, L. k C. 483. In that case it 
was held that a policeman who said he would lock a man up for speaking to a prostitute 
unless he received five shillings used a " menace," notwithstanding his having no power 
to do so.] 

- R. .S. C. 0. 173, 8. 3 (2) ; 24 & 25 Vict. c. 96. s. 40. r - - 

^ R. fc'. C. c. 173, s. 3 (3). Tliis provision is not in the English Act. i;;, 

* R. S. C. c. 173, 8. 6; 24 & 25 Vict, c. 96, s. 49. 



816 A DIGEST OF 



CHAPTER XXXVII. 

^BURGLARY, HOUSEBREAKING, ETC. 

^ Article 389. 

DEi^'INITIONS. 

[In this chapter the followiug words are used in the 
followiug senses : — 

^ Night means the interval between nine of the clo>^kat 
night and six of the morning. 

House means a permanent building in which the 
owner, or the tenant, or any member of the family 
habitually sleeps at night. 

' If a building is so constructed as to consist of several 
parts having no internal communication between each 
other, and if these parts are occupied and habitually slept 
in by different tenants, they may constitute separate 
dwelling-houses. 

' A building occupied with and within the same curtil- 
age with any dwelling-house, is deemed to be part of the 
said dwelling-house if there is between such building 
and dwelling-house a communication either immediate 
or by means of a covered and inclosed passage leading 
from the one to the other, but not otherwise. 

' [3 Hist. Or. Law, 150. Draft Code, Part XXVIIE, s?. 297-308.] : ; 

2 S. D. Art. 315. 

I B. S. C. c. 161, 8. 2 (/,). [21 & 25 Vict. c. 96, s. 1. It may be worth while to observe 
that the expressions " nine of the clock," " six of the clock," indicate mean as opposed to 
solar time, but a question might arise as to whether they mean local mean time or the 
mean time commonly observed at any given place. London time, or, as it is called, rail- 
way time, is now very generally observed, and there is a difference of more than twenty 
minuteb between London and Cornwall. Local mean time is the natural meaning. 

■■ The cases and authorities on this subject are collected in Archbold, 518-520, but there 
is so little principle in the matter, and each case depends so much on its peculiar circum- 
stances, that I have not thought it advisable to give illustrations.] 

'' R. S. C. c. 164. s. 36 : 24 & 25 Vict. c. 96, s. 53. 



THE CUIMINAIj LA IV. 'Ail 



[Tho word " break " moiiiis 

{a.) tho breaking of any part, internal or external, of 
tho building itself, or tho oi)oning by any means what- 
ever (including lifting, in the casi^ of things kept in tht'ir 
places by their own weight) of any door, window, 
shuttor, cellar flap, or other thing intended to cover 
openings to tho house, or to give passage from one part of 
it to another, and getting down the chimney ; 

{b.) obtaining an entrance into the house by any threat 
or artifice used for that purpose, or by collusion wit." any 
person in the house. 

Tho word " outer " means the entrance into tho house 
of any part of tho ollender's body, or of any instrument 
held in his hand for the purpose of intimidating any per- 
son in tho house, or of removing any goods, but does not 
include the entrauce of part of an instrument used to 
break tho house open. 

Jllustration. 

' A opens a sash wiinlow, puts a crowbar under a shutter three inches 
inside the window, and tries to break open tlie shutter, but was not 
witliin the sasli window. Here tliere is a breaking, but no entry.] 

- Article 390. 
robbina places of worship— burglary. 

Every one is guilty of felony and liable to imprison- 
ment for life who 

[(«.) ^ breaks and enters any church, chapel, meeting- 
house or other place of divine worship, and commits any 
felony therein ; or 

(b.) ^ breaks and enters any dwelling-house by night 
with intent to commit a felony therein. The offence in 
this case is called burglary.] 

' [/?. V, Tiust, 1 Moo. 183 ; and see li. v. Bobo-ts, 2 East, P. C. 487.] 
= S. D. Art. 316. 

^ R. S. C. c. 164, 8. 86 ; 24 & 25 Vict. c. 96, s. 50. 

^R. S. C. 0.164, ss. 37,38; [24 & 25 Vict. o. 96, s. 62 for punishment; 2 Ruse. Cr. 2 
(5th ed.) for definition.] 



318 A DIGEST OF 



' Article 301. 

IlOUSKiniKAKINd AND (COMMISSION OK FELONY. 

■ Evory one ia yiiilty of felony and lia])l(^ to lourt(>(>n 
yt'iirs' imprisoiinn'iil [who luniks jiiul ('iiii'r8 and commits 
any IMony in any dwi'llin^'-liouso or any buildinj^ being 
within the curtihigc of any dwelling-house and occupied 
therewith (but not being part thereof within Article 
889), or any schoolhouse, shop, warehouse, or counting- 
house.] 

'Article 3!)2. 

enteiiino dwellino-iiouse with intent. 

' Every one is guilty of felony and liable to seven years' 
imprisonment [who breaks and enters any of the buildings 
mentioned in Articles 390 or 391, or who by night enters 
any dwelling-house with intent in either case to commit 
felony therein.] 

''Article 393. 
breaking out after committina felony. 

" [Every one who, being in any of the buildings men- 
tioned in Articles 390 or 391, commits a felony therein, 
and breaks out of the same, is guilty of felony, and is 
liable to the same punishment as if he had broken in and 
committed felony therein. If such building is a dwelling- 
house, and the offence is committed at night, the offender 
commits burglary. 

Every one who enters any dwelling-house with intent 
to commit a felony therein, and breaks out of the same by 
night, is guilty of burglary.] 

» S. D. Art. 317. 

- R. S. C. c. 164, 88. 40, 41 ; 24 & 25 Vict. o. 96, ss. 55, 56. 

3 S. D. Art. 318. 

•• 11. S. C. 0. 164. 88. 39, 42; 24 & 25 Vict. c. 96, 8S. 54, 57. 

* 8. D. Art. 319. 

« R. S. C. c. 164, 88. 35, 37, 40, 41 ; 24 & 25 Vict. c. 96, 88. 50, 51, 55. 56. 



THE C/t/M/NAL LAW. 310 



' AUTICLE 3'J4. 

HEINO l'Y)TTNn IN P()>iSKMSI()N oK nOTTHKnilKAKIN(f 

INHTUUMKNTS. 

^ Every Olio in yuilly ol" a misdt'uieaiior and lia])lo for 
tho first oflbiiti' to llivt'c yearH* imprisoniiKMit, or il' he has 
pnn'iously bocii roiivictt'd ol" I'olouy or of such iiiisdo- 
incanor to t(Mi years' iuii)risoiuaent, who is louiid l)y 
iiiuht, 

{(I.) ' aruu'd with any daiincroiiis or olFonsivo weapon or 
iiifstruiiK'ul whatever with intent to break or enter into 
any dwellinu-house or other buikling' whatsoever, and to 
eoinniit any I'elony therein ; 

(b.) having in his possession, without hiwi'ul exeuse 
(the proof of which exeuse lies upon him), any pi«k- 
loek key, ' crow, jack, bit, or other implement of house- 
breaking- ; (or any mutch or combustible or explosive 
substance ;) ' 

(r.) having his face ])hickene(l or otherwise disguised 
with intent to I'ommit any felony ; 

(d.) in any dwelling-house or other building whatsoever, 
with intent to commit any felony therein. 

1 S. D. Art. 32(). 

= R. S. C. 0. 101, S8. 43, 44 i 24 & £5 Vict. o. 90, ea. 58. 59. 

■' lA common key may be suoli an instriunont ; ]{. v. OhUnim, 2 Den. 472. Maule and 
Crcsswell, JJ., were botli of upiiiion that there ^houlrt lie a comma between '' picklock " 
and '' kpy." H. v. Oldham, however, makes this unimportant.] 

^ Tlie words in parentheses are not in the English Act. 



320 ^l Did EST OF 



cnkVTVAi xxxviir. 

PUNISllMhWT OF THEFTS AND OFFENCES liESEMlilJNG 

TIIKFT COM M in El) IN llESl'ECT OF I'AJiTlClJLAlt 

TlllXaS, IX I'AUTlCl'LAli PLACES, II Y I'Alt- 

TJCCLA n I'EliSONS—ItKCElVINa OOODS 

UNLA WFCLL Y OUT A IS ED. 



• AUTICI.E 89 



■). 



PUNISHMENT FOR STEALTNC} TIIINOS FOR WHICH NO 
SPF.CIAL PUNISHMENT IS lM!OVn)ED. 

•'' Every ouo who coimnitH Kimplc liircciiy, or auy felony 
made pimisliablc l)y The Larceny Ail in the sumo manner 
as simple larceny, is guilty of a felony, and liable to 
sev«'U years' imprisonment, if no punishment is other- 
wise specially provided.' 

' The offender is liabh^ to ten years' imprisonment if he 
has been previously convicted of a felony, either sum- 
marily or upon indictment. 

Article 39 G. 

punishment for appropriating property with intent 
to defraud, for which no special punish- 
ment is provided. 

•^ Every one who, unlawfully and with intent to de- 

' [3 Hist. Cr. Law. 14G-60, Draft Code, Part XXV.l 

= 8. D. Art. 321. 

8 R. S. C. c. 104, 8. 5; 24 k 21 Vict. o. 00, s. 4. Sir Jiimos Fitz.-Jiunes Strphen in Note 
(2) to Article 321, states tiiat the thefts fallini; iindor this provision '' appear to bo the 
simple larceny referred to in 24 k 25 Vict. c. 96, ss. 33 and 36 ; " but refers to Hale's 
definition (1 Hale, 503) of simple larceny as being larceny without violence or putting in 
fear. Sec also Bish. Cr. Law. Vol. 1, s. 560, Vol. 2, s. 757, where tho term is used to ex- 
clude compound larcenies which are defined to be larcenies committed under circum- 
stances of aggravation such as larcenies from the person, the dwelling-house, the shop, 
robbery and the like. 

■• " Except in the cases hereinafter otherwise provided for," that is by The Larceny Act ; 
but the effect would be the same if the special provision wa« contained in any other Act. 

'' R. S. C. 0. 164, s. 6 ; 24 & 25 Vict. o. 96, s. 7. 

» R. S. C. c. 164, 8. 85. See J{. v. McDonald, decided under C. S- C. c. 92, 8.72, which 



THE CUiMiyAL LAW. 321 

rraud, by liikini;', by cmbo/zliiig-, by obtiiinii'jL? by lulHe 
pr('toii«H^H, or ill any olluT iiuiimtT vvliiitKOfvcr, appro- 
priab'H to his own use or to tho uso of any othor per- 
son, any proixTty whatsoi'vor, so as to deprive any other 
person temporarily or absolutely of the advaniage, use or 
onjoyiin'nt of any btMidieial interewt in 8U(3h property in 
law or in equity, which such other pernon has tht'rein, 
is s^^'lty of a miKdcnieanor, and liablo to soveu years' 
imprisoniTK'nt. 

If the value of such property exeeeds two hundred 
dollars, tho oUeuder is liabh- to fourteen years' imprisou- 
ment. 

AiiTiChK 39*7. 

ADDITIONAL PUNIHllMENT WHEN VATiUE OF PROPERTY 
EXCEEDS TWO HUNDRED DOLLARS. 

' Every one who is convicted of an offence aj^ainst The 
L'Tceny ilc^by stealinn*, emb(^zzling, or obtaining by false 
pretences any propi^ty whatsoever, the value of which 
is over two hundred dollar.s, is liable to seven years' 
imprisonment, in addition to any punishment to which 
he is otherwise liable for such offence. 

-Article 898. 

valuable securities. 

' Every one who steals, or for any fraudulent purpose 
destroys, cancels, obliterates or conceals the whole or any 
part of any ' valuable security, other than a do(;ument of 



however, was not in tho same terms as s. 85 ; R. v. Vfurner. 7 R. L. U6 ; R.y. Horneman, 
4 P. & B. 529 ; H. v. Mnrtin, 3 G. &. 0. 124. For the definition of " property " see s. 2 («). 
Aiite p. 6. It includes stamps issued by authority of Parliament or a Legislature. See 
also as to stealing stamps intended to be ulFixed to certificates issued under The Oat 
//i«p(ct»on ^c<. R. S. C. 0. 101, s. 45. 

' R. S. C. 0. 164, 8. 86. _^_::_—.-^-^-H^--''~ '-"-■'"■'" 

-' S. D. Art. 323. 

» K. S. C. c. 164. 8. 12 : 24 & 26 Vict. o. 96, s. 27, The word " conceals " is not in the 
English Act. For definition of the expression valuable security, see R. B. C. o. 164, s. 2 
(rf.) ante p. 7. 

T 



'622 A Dfa/'JST OF 



title to land, commits foloiiy of the same nature and in 
the same de^'reo, and punishable in the same manner as 
if he had stolen any chattel of the like value with the 
share, interest, or deposit to which the security so stolen 
relates, or with the money due on the security so stolen 
or secured thereby and remainino; unsatisfied, or with 
the value of thi^ goods or other valuable thinf? represented, 
mentioned, or referred to in or by the security. 

'Article 399. 
testamentary instruments. 

^ Every one is guilty of felony and liable to imprison- 
ment for life who, either during the life of the testator or 
after his death, steals or, for any fraudulent purpose, 
destroys, cancels, obliterates or conceals the whole or any 
part of any will, codicil or other testamentary instrument, 
whether the same relates to real or personal property, or 

to both. 

^Article 400. 

document of title to lands. 

* Every one is guilty of felony and liable to three years' 
imprisonment who steals or, for any fraudulent purpose, 
destroys, cancels, obliterates or conceals the w^hole or any 
part of any documiMit of title to lands. 

^Article 401. 

offenders against provisions of articles 399, 400, 
not liable to conviction in certain cases. 

•^ No person is liable to be convicted of any felony 

1 S. D. Art. 324 (a.) 

2 R. S. C. c. 164, g. 14 ; 24 & 25 Vict. c. 96, s. 29. For definition of " testamentary 
instrument " sec B. S. C. c. 164, 9. 2 (t.) ante p. 6. 

3 S. D. Art. 327 (a.) 

< K S. C. c. 164, B. 13 ; 24 & 25 Vict. c. 96, s. 28. For definition of " document of title to 
lands," see R. S. C. o. 164, s. 2 (6.) ante p. 5. 

6 S. D. Art. 323 ; bi it the provision does not apply to that Article which represents 24 & 25 
Vict. 0. 96, s. 27. It applies to the felonies mentioned in ss. 28, 29. 

« R S. C. c. 164, 3. 14 (3) ; 24 & 25 Vict. c. 96, s. 29. 



THE CRIMINAL LAW. . 323 

m(?ntionod in Articles 399, 400, by any evidence what- 
ever, in respect of any act done by him, if he has, at .^ny 
time previously to his being charged with such offence, 
first disclosed such act, on oath, in consequence of any 
compulsory prucecs of any court, in any action, suit or 
proceeding bond fide instituted by any person aggrieved, 
or if he has first disclosed the same in any compulsory 
examination or deposition before any court upon the hear- 
ing of any matter in bankruptcy or insolvency. 



' Article 402. 

judicial or official documents. 

- Every one is guilty of felony and liable to three 
years' imprisonment who steals or, for any fraudulent 
purpose, takes from its place of deposit, for the time 
beiuo", or from any person having the custody thereof, or 
unlawfully and maliciously cancels, obliterates, injures 
or destroys the whole or any part of any record, writ, 
return, affirmation, recognizance, cognovit actionem, bill, 
petition, answer, decree, panel, process, interrogatory, 
deposition, affidavit, rule, order or warrant of attorney, or 
of any original document whatsoever, of or belonging to 
any court of justice,' or relating to any cause or matter, 
begun, depending or terminated in any such court, or of 
any original document in anywise relating to the busi- 
ness of any office or employment under Her Majesty, and 
being or remaining in any office appertaining to any 
court of justice, or in any government or public office. 

' S. D. Art. 327 (6.) 

= R. S. C. 0. 164, 8. 15 ; 24 & 25 Viot. c. 96, s. 30. The 26th section of the statute C. S. C 
0. 92 contained the words " any notarial minute or the original of any other authentio 
Act." This was held not to include an authentic copy of an Acte or deed passed before a 
notary ; R. v. McGinnia, 7 L. C. J. 311. 

^ The Police Court of the City of Toronto is a Court of Justice within R. S. C. c. 164, 
8. 15, and it is a felony to maliciously destroy a record thereof;7f. v. Mason ; 22 U. C. C. 
P. 246. 

t2 



324 A DIGEST OF 



Akticle 403. 

stealing post letters, etc.— stopring mails with 

intent to rob or search — issuing money 

orders fraudulently. 

' Evo^y oue is guilty of felony and liable as a maxi- 
mum puuishmout to imprisoumeut for life in cases (a), 
(b), {c), (d) (e), (h), (i) and (j) ; for seven years in case (k), 
and for five years in cases (/) and (§•), who does any of 
the following acts, that is to say : — 

■ {(i) steals, embezzles, secretes or destroys any post letter ' 
containing any chattel, money or valuable security ; ' 

'' (b) sieals from or out of a post letter' any chattel, 
money or valuable security ; * 

" (c) steals a post letter bag ; '' 

1 R. S. C. 0. 35, SB. 79-85, 88. The minimum punishment only is given in ss. 83, 84t 85 
Ui.), (i.) and (/.) 

- R S. C. c. 35, 8. 79. 

■' The expression " post letter" means any letter transmitted or deposited in any post 
office to be transmitted by tho post or delivered through the post, or deposited in any 
letter box put up anywhere under the authority of tho Postmaster-General to be trans- 
mitted or delivered through the post :— and a letter shall be deemed a post letter from 
the time of its being so deposited or delivered at a post office, to the time of its being 
delivered to the person to whom it is addressed ; and a delivery to any person authorized 
to receive letters for the post shall be deemed a delivery at the post ofiioe ; and a delivery 
of any letter or other mailable matter at tho house or office of the person to whom the 
letter is addressed, or to him, or to his servant or agent, or other person considered to be 
authorized to receive the letter or other mailable matter, according to the usual manner 
of delivering timt person's letters, shall be a delivery to the person addressed. R. S. C. 
0. 35, s. 2 (t.) 

'' The expression " valuable security " includes the whole or any part of any tally, order 
or other security or document whatsover entitling or evidencing the title of any person to 
any share or interest in any public stock or fund, whether of Canada, or of the United 
Kingdom, or of any British colony or possession, or of any foreign country, or in any fund 
or stock of any body corporate, company or society in Canada or elsewhere, or to any 
deposit in any savingrs' bank, or the whole or any part of any debenture, deed, bond, post 
office money order, bank note, bill, note, cheque, warrant or order or other security for 
the payment of money, or for t,be delivery or transfer of any goods, chattels or valuable 
thing, whether in Canada or el :awhere. Id. s. 2 (m.) 

5 Id. s. 80. 

« Id. 8. 81. 

' The expression " post letter bag " includes a mail bag or box, or packet or parcel, or 
other envelope or covering in which mailable matter is conveyed, whether it does or does 
not actually contain mailable matter- Id. s. 2 (k.) 



THE CRIMINAL LAW. 325 



' {d) steals a post letter from a post letter bag, or from 
any post olRce/ or from any officer or person employed in 
any business of the Post Office of Canada, or from a 
mail ;' 

' (e) stops a mail with intent to rob or search the same ; 

■' (/) steals, embezzles, secretes or destroys any post 
letter; . 

•' {g) unlawfully opens any post letter bag, or unlaw- 
fully takes any letter out of such bag ; 

" (/<) receives any post letter or post letter bag, or any 
chattel, money or valuable security, parcel or other 
thing, the stealing, taking, secreting or embezzling 
whereof is hereby declared to be felony, knowing the 
same to have been feloniously stolen, taken, secreted or 
embezzled ; 

^ («') steals, embezzles or secretes any parcel sent by 
parcel post, or any article contained in any such parcel ; 

"(/) unlawfully issues any money order with a fraudu- 
lent intent ; or — 

'^' [k) steals, purloins, embezzles or obtains by any false 
pretence any key suited to any lock adopted for us 3 by 
the Post Office Department, and in use on any Canada 
mail or mail bag, or aids or assists therein. 

The minimum term of imprisonment is limited in 
cases (a), {b), (c), {d), {e) and (/t) to five years; in cases (/), 
(t), (.;■) to three years, and in case {k) to two years. 

'K. S. C. c. 35,8S.81,2(A.) 

- The oxpression "post office" means any building, room, street letter box, receiving box 
or other receptacle or place where post letters or other mailable matter are received or 
delivered, sorted, made up or despatched. Id. s. 2(?.) 

"The expression "mail " includes every conveyance by which post letters are carried, 
whether it is by land or by water. Id. s. 2(/.) 

*id. S.81. • ■"' -■'-;":-:,■. 

"Id. S.79. 
« Id. s. 82. 
■ Id. s. 81. 
« Id. s. 83. 

^ Id. s. 85. As to a postmaster or other person authorized to issue money orders issuing 
any such order before he receives the money payable therefor, see Art. 441 (e.) 
'"Id. 8. -88. 



326 A DIGEST OF 



Article 404. 

stealing mailable matter other than post letters. 

^ Every one is guilty of a misdemeanor, and liable to 
five years' imprisonment - who steals or for any purpose 
embezzles or secretes any printed vote or proceeding, 
newspaper, printed paper or book, packet or package of 
patterns or samples of merchandise or goods, or of seeds, 
cuttings, bulbs, roots, scions or grafts, or any post card 
or other mailable matter,' not being a post letter sent by 
mail. 

Article 405. 

election documents. 

* Every one is guilty of a felony, and liable to a fine, in 
the discretion of the court, or to seven years' imprison- 
ment, or to both fine and imprisonment, who steals, or 
unlawfully (or maliciously), either by violence or stealth, 
takes from any person having the lawful custody thereof, 
or from its lawful place of deposit for the time being, or 
aids, counsels or assists in so stealing or taking, any writ 
of election, or any return to a writ of election, or any 
(indenture) poll-book, voters' list, certificate, affidavit or 
report, or any document or paper made, prepared or 
drawn out according to or for the requirements of any 
law in regard to dominion, provincial, municipal or civic 
elections. 

; : Article 406. 

RAILWAY tickets. 

^ Every one is guilty of felony, and liable to imprison- 

1 K. S. C. 0, 35, 8. 90. 
« Art. 17. 

^ The expression "mailable matter" includes any letter, packet, parcel, newspaper 
book or other thing which by The Pout Office Act, or by any regulation made in pursuance 
f it, may be sent by post ; R. S. C. o. 35, s. 2 (;.) 

* R. S. C. c. 8, s. 102 ; c. 164, s. 56. The words in parentheses are not in R. S. C. c. 8, s. 102. 
6R.SC. 0.164, s. 16. 



THE CKIMTNAL LA W. 327 



ment for any term less thiiu two years, who steals any 
railway or steamboat ticket, or any order or receipt for a 
passage on any railway or in any steamer or other vessel. 



'Article 407. 

CATTLE. 

- Every one is guilty of felony, and liable to fourteen 
years' imprisonment, who 

(a.) steals any cattle ; or 

(6.) wilfully kills any animal with intent to steal the 
carcase, skin or any part of the animal so killed, pro- 
vided the offence of stealing such animal is felony. 

^Article 408. 

dogs, birds, beasts and other animals. 

* Every one who 

(a.) steals any dog, or any bird, beast or other animal 
ordinarily kept in a state of confinement or for any dom- 
estic purpose, or for any lawful purpose of profit or 
advantage, not being the subject of larceny at common 
law ; or 

(6.) wilfully kills any such dog, bird, beast or animal, 
with intent to steal the same, or any part thereof, 

Is liable, on summary conviction, to a penalty not > 
exceeding twenty dollars over and above the value of 
the dog, bird, beast or other animal, or to one month's 
imprisonment with hard labor. 

Every one who, having been convicted of any such 
offence, afterwards commits any such offence, is liable 
to three months' imprisonment with hard labor. 

1 S. D. Arts. 322, 323 (a.) 

2 R. S. C. c 164, 83. 7, 8 ; 21 & 2^5 Viot, o. 96, ss. 10, 11. For definition of cattle, see 
R. S.C. 0. 131,8. 2C/)aH*ej>.3. 

^S.D. Art. 328(a), W.) 

* R. S. C. c. 164, 8. 9 ; 24 & 25 Viot. c. 96, 88- 18, 21. 



328 A DIGEST OF 



' Article 409. 

PIGEONS. 



" Every one who unlawfully and wilfully kills, wounds 
or takes any house-dove or pigeon under such circum- 
stances as do not amount to larceny at common law, is 
liable, on summary conviction, to a penalty not exceed- 
ing ten dollars over and above the value of the bird. 



'Article 410. 

OYSTERS. 

' Every one is guilty of felony, and liable to seven 
years' imprisonment, who steals any oysters or oyster 
brood from any oyster bed, laying or fishery, being the 
property of any other person, and sufficiently marked 
out or known as such. 

Every one is guilty of a misdemeanor, and liable to 
three months' imprisonment, who unlawfully and wil- 
fully uses any dredge or net, instrument or engine what- 
soever, within the limits of any oyster bed, laying or 
j&shery, being the property of any other person, and suf- 
ficiently marked out or known as such, for the purpose 
of taking oysters or oyster brood, although none are 
actually taken, or unlawfully and wilfully with any 
net, instrument or engine, drags upon the ground of any 
such fishery. 

Nothing herein applies to any person fishing for or 
catching any floating fish within the limits of any oyster 
fishery with any net, instrument or engine adapted for 
taking floating fish only. ' 

1 S. D. Art. 328 (/.) 

2 R. S. C. c. 16J, 8. 10 ; 24 & 25 Vict. o. 98, s. 23. 
« S. D. Arts. 327 (c), 328 {(r.) 

* R. S. C. c. 164, 88. 11, 5 ; 24 & 25 Vict. c. 96, 8. 26. As to injuring or disturbing oys- 
ter beds contrary to Ihe Fisheries Acty see R. S. C. c. 95, 8. 21 (6.) 



THE CltlMlNAL LAW. 329 



'AllTICLE 411. 
THINGS FIXED TO HUILDINGS OR IN LAND. 

- Every one is g'uilty of felony and liable to seven years' 
imprisonment who steals, or rips, cuts, severs or breaks, 
with intent to steal, any glass or woodwork belonging 
to any building whatsoever, or any lead, iron, copper, 
brass or other metal, or any utensil or fixture, whether 
made of metal or other material, or of both, respectively 
fixed in or to any building whatsoever, or anything made 
of metal fixed in any land, being private property, or for 
a fence to any dwelling house, garden or area, or in any 
square or street, or in any place dedicated to public use 
or ornament, or in any burial ground. '. 

^ Article 412. 

trees in pleasure grounds, etc., of five dollars' 
value — trees elsewhere of twenty- 
FIVE dollars' value. 

''Every one is guilty of felony and liable to seven 
years' imprisonment who steals, or cuts, breaks, roots up 
or otherwise destroys or damages, with intent to steal, 
the whole or any part of any tree, sapling or shrub, or 

'S.D. Art. 327(c). 

2 R. s, c. c. 164, 83. 17, 5 ; 24 >fe 25 Vict. c. 00, s. 31. 

" [The words " burial ground " were added to do away with a doubt expressed by Baron 
Bramwell {R. v. Jonea, D. A' B. 55.S) as to whether a churchyard was a "public place" 
within 7 Jk 8 Geo. 4, c. 29, s. 44. The other judRCS did not ishare this doubt. The present 
enactment does not absolutely remove it, as there are many churchyards which are not 
burial grounds. However, the case of It. v. Jomn, distinctly decided the point.] An 
offender against this and the next two Articles cannot be convicted on any evidence 
disclosed by him on oath in consequence of the compulsory processs of any court in any 
action instituted by any person aggrieved ; R. S. C. o. 164, s. 20 (2). 

* S. D. Art. 327 {d). 

^ R. S. C. c. 164. ss. 18, 5; 24 & 25 Vict. c. 96, s. 32. [The section is re-arranged for the 
sake of brevity. The change also represents tlie sense, for it has been held that in 
estimating the damage done the value of several trees injured at the same time may be 
put together ; R. v. Shepherd, L. R. 1 C. C. R. 118.] 



330 A DIG EST OF 



any uncLTWood, if the viiluo of tho artiolo or articles 
stolon, or the amount of the injury done, exceeds thesrm 
of twenty-five dollars; or cxeoeds the sum of live dollars 
if the article or articles stolen or damai^ed grows in any 
park, i^leasure ground, garden, orchard or avenue, or in 
any ground adjoining or belonging to any dwelling- 
house. 

'Article 413. 
trees of the value of twenty-five cents. 

-Every one who stt^als, or cuts, breaks, roots up, or 
otherwise destroys or damages, with intent to steal, the 
whole or any part of any tree, sapling or shrub, or any 
underwood, the value of the article stolen, or the amount 
of the damage done, being twenty-five cents at the least, 
is liable, on summary conviction, to a penalty not exceed- 
ing twenty-five dollars over and above the value of the 
article stolen or the amount of the injury done. 

Every one who, having been convicted of any such 
offence, afterwards commits any such offence, is liable, 
on summary conviction, to three months' imprisonment 
with hard labor. 

Every one who, having been twice convicted of any 
such ofitmce, afterwards commits any such offence, is 
guilty of felony, and liable to seven years' imprisonment. 

Article 414. ; 

receiving stolen trees exceeding in value ten 

DOLLARS. 

' Every one is guilty of a misdemeanor and liable to 
the same punishment as the principal offender, who 
receives or purchases any tree or sapling, or any timber 

» S. D. Art. 32i (A.) 

= R. S. C. 0. 164, S3. 19, 5 ; 24 & 25 Vict. o. 96, s. 33. 

•' R. S. C. c.,164, 8. 20. See Chapter XLI, p. 380. 



rilK VlilMlNAL LAW. 331 



mado thi'r«'IVoiii, cxcccdiii*^- in value the sum of ten 
dolliirH, knowing" the same to liuvis boon stolon or unlaw- 
fully cut or curriod away. 

AllTICLE 415. 
TIMHEK FOUND ADRIFT. 

' Every one is guilty of a misdt'meanor and liable to 
seven years' imprisonment 

[a.) who, without the consent of the owner thereof, 

(i.) takes, holds, keeps in his possession, colltM'ts, con- 
ceals, receives, appropriates, purchases, sells or causes or 
procures or assists to be taken possession of, collected, 
concealed, received, appropriated, purchased or sold, any 
timber, mast, spar, saw-log or other description of lumber 
which is found adrift in, or <;ast ashore on the bank or 
beach of, any river, stream or lake ; or 

(ii.) wholly or partially defaces or adds, or causes or 
procures to be defaced or added, any mark or number on 
any such timber, mast, spar, saw-log or other description 
of lumber, or makes or causes or procures to be made 
any false or counterfeit mark on any such timber, mast, 
spar, saw-log or other description of lumber ; or 

(6.) refuses to deliver up to the proper owner thereof, 
or to the person in charge thereof, on behalf of such 
owner, or authorized by such owner to receive the same, 
any such timber, mast, spar, saw-log or other description 
of lumber. 

- Article 416. 

fences— stiles — gates. : 

^ Every one who steals, cuts or breaks or throws down, 
with intent to steal, any part of any live or dead fence, 
or any wooden post, pale, wire or rail set up or used as a 

> 11. S. C. c. 164, ss. 87, 5. See Art. 537. 

■ S. D. Art. 328 (»). 

» R. S. C. 0. 164. s. 21 ; 24 & 25 Vict. e. 96, s. 34. 



332 A DIOKST OF 

fence, or any stilo or gate, or any part thereof roHpeo 
tivoly, is liable, on summary conviction, to a penalty not 
exceeding twenty dollars, over and above the value of 
the article or articles so stolen or the amount of the 
injury done. 

Every on«^ who, having been <;onvicted of any such 
offence, afterwards commits any such oll'encc is liable, 
on summary conviction, to thrive months' imprisonment 
with hard labor. 

' Articli. '11. 

FAILING TO SATIHFY .JUSTICE THAT POHSESSION OF TREE, 

ETC., IS LAWFUL. 

^ Every one who, having in his possession, or on his 
premises with his knowledge, the whole or any part of 
any tree, sapling or shrub, or any underwood, or any 
part of any live or dead fence, or any post, pale, wire, 
rail, stile or gate, or any part thereof, of the value of 
twenty-five cents at the icast, is taken or summoned be- 
fore a justice of the peace, and does not satisfy such 
justice that ho came lawfully by the same, is liable, on 
summary couA'^iction, to a penalty not exceeding ten 
dollars, over and above the value of the article so in his 
possession or on his premises. 

• •'' Article 418. 

roots, plants, etc., growing in gardens, etc. 

' Every one who steals or destroys, or damages with 
intent to steal, any plant, root, fruit or vegetable produc- 
tion growing in any garden, orchard, pleasure ground, 

' S. D. Art. 328 (j). 

■ R. S. C c. 104, ?. 22 ; 24 & 25 Vict. c. 96, s, 36. " Cordwood" is not the whole or any 
part of a tree within the statute ; li. v. Gancell, 33 U. C. Q. B. 303. 

''S. D. Art. 328 (A). 

< R. S. C c. 164, 88. 23, 5 ; 24 & 25 Vict. c. 90, s. 36. McDonald v. Cameron, 4 U. C. 
Q. B. 1. 



THE CJilMINAL LA W. 333 



uurHcry jiroiind, hot-liouNc, ^ri'di-liouHc or coiiHorvatory, 
JH liiililc, oil snrnuiiiry conviction, to a penalty not exceed- 
ing twenty dolliiTH, over and above the value of the 
article ho stolen or the lunount ol' the injury done, or to 
out) month'K imprisonnient with or without hard labor. 
Every one who, having- been convicted of any such 
olPencc, afterwards commits any such offence, is j^uilty 
of felony, and liable to seven yt-ars' imprisonment. 

' AlJTICLE 410. 

ROOTS, PLANTS, ETC., GROWING ELSEWHERE THAN IN 

GARDENS, ETC. 

^ Every one who steals, or d(^stroys or damages with 
intent to steal, any cultivated root or plant used for the 
food of man or beast, or for medicine, or for distilling, or 
for dyeing, or for or in the coursi? of any manufacture, and 
growing in any land, open or enclosed, not being a 
garden, orchard, pleasure ground, or nursery ground, is 
liable, on summary conviction, to a penalty not exceed- 
ing five dollars, over and above the value of the article 
so stolen or the amount of th(^ injury done, or to one 
month's imprisonment with hard labor. 

Every one who, having been convicted of any such 
offence, afterwards commits any sueh offence, is liable to 
three months' imprisonment with hard labor. 

'■'Article 420. 
ores of metals. • . 



* Every one is guilty of felony and liable to imprison- 
ment for any term less than two years who steals, ' or 

' S. D. Art. 328 (1). 

■ R. S, C. 0. 164, s. 24 ; 24 & 25 Viot. c. 96, s. 37. 
" 8. D. Art. 327^. 

^ R. S. C. c. 164, 8. 25 ; 24 & 25 Vict. c. 96, 8. 3S. For other offences respecting metals, 
see Arts. 446, 447 and 448. 
° The possession, contrary to the provisions of any law in that behalf, of any smelted 



884 A Diaicsr OF 



Hovers with intent to stoul tho oro of luiy uintal, or any 
quiirl/. la[)iM (•aiiiniiniiris, niiinifiiiKvst', or uiundii-, or any 
piooe of ufold, silvor or other nictnl, or any wa<l, hhuk 
eawlk, or h\\\A\ lead, or any coal, or «'annt'l coal, or any 
marble, Nton»i or other mineral, Irom any mine, b»?d or voin 
therooi" respectively. 

It is not an ofl'eiKio to take, lor tho purposes oT explora- 
tion or Ncientilic invi'stigation. Jiny Njjecinu'n or speci- 
mens of any ore or mineral I'rom any pie(M; of ground 
uniu(dosed and not occupied or worked as a mine, quarry 
or digging-. 

Article 421. 

things undkil heizurk. 

' Every one who, whether pretending to be the owner 
or not, seorotly or openly, and whether with or without 
force or violenc(^ takes or carries away, or causes to be 
taken or carried away, without law^iul authority, any 
property under lawful seizur*' and detention, steals such 
property, and is guilty oi' i'elony and liable to be punished 
accordingly. 

^ Article 422. 
stealing from the person. 
■^ Every one is guilty of felony and liable to fourteen 



gold or silver, or nny gold-bearing aunrtz, or any unBiuoltod or otherwise unmanufaotured 
gold or silver, by any operative, workman or laborer actively engaged in or on any mine, 
xaprimd facie evidence that the same has boon stolen by him ; U. S. C. o. 164, a, 30. 

' R. S. C. 0. 164, 8. 50. U. v. Frarman, 10 0. R. 6(K), decided under 43 Vict. (D) c. 28, 
8. 66. See with respect to things seized under The Cmtotiw Act, R. S. C. o. 32, 8. 212, and 
under The Inland Ihiitnuc Act, R. S. C. c. 34, a. 100. The punishment in the latter case 
18 three years' imprisonment ; no term is mentioned in R.S. C. o. 82, s. 212. It is also a 
felony to break locks, ko,, or unlawfully abstract any spirits, or orther goods manufac- 
tured in bond, or materials for the manufacture thereof from any place where they are 
retained under the supervision of an officer of the Inland Revenue ; R. S. C. o. 34, 
8.94. 

"- S. D. Art. 325 (6.) 

« R. S. 0. 0. 164, 8. 32 ; 24 i 25 Vict. e. 96, b. 40. 



77//; VltlMISM. LAW. ;J35 



yciirH' iiuprisomiu'iit who Mir-ilH any chuttrl, iiioiu'y or 
valuiibit' Hccurity IVom tlif por^^ou oI'iuioHrt. 

' AiiTK'iiK 4'J;{. 

.STKAF.INd IN DUTJWJNO MOISES. 

" Evory oiu» Im uiiilty of rclouy niul liiibl*' to fourteen 
ytMir-s' imprisonniciil wlio 

{<i) Htciils ill any dwcllinn" liousc any diattcl, monoy or 
valua))l<' sciuirity to the valuer in tlif vvholu of twenty- 
five dollars or more ; or, 

[h) HtiMils any chattol, money or v^aluablo security in 
any d\vellinij>- houHe, and by any menace or threat puts 
anyone tlien-in in bodily fear. 

•■' AUTICLE 424. 
8TEALINO IN MANUFACTORIES, ETC. 

* Every one is guilty of felony and liabb; to fourteen 
years' imprisonuuMit who steals, to the value of two 
dollars, any woollen, linen, hempen or (!otton yarn, or 
any goods or artieles of silk, woollen, linen, cotton, 
alpaca or mohair, or of any one or more of such materials 
mixed with each other or mixed with any other material, 
whilst laid, placed or exposed, duriu<y any stage, process 
or progress of manufacture, in any building, field or other 
place. 

Article 425. 

fraudulently disposing of goods entrusted for 

manufacture. 

"Every one is guilty of a misdemeanor, and liable to 

> S. D. Art. 325 (c.) 

"11.8.0. c. 164, s. 45, 46 ; 24 & 25 Viot. c. 96, ss. 60, 01. 

'S.D. Art.325W.) 

* R. S. C. c. 164, 8. 47 ; 24 & 25 Viot. o. 90, s. 62. ■ 

' R. S. C. 0. 164, 8. 48 : 6 & 7 Viot. o. 40, a. 2. 



33G A DIGEST OF 

imprisonment for any term loss than two years, when 
the offence is not within the next preceding Article, who, 
having been entrusted with for the purpose of manufac- 
ture or for a special purpose connected with manufac- 
ture, or employed to make, any felt or hat, or to prepare 
or work up any woollen, linen, fustian, cotton, iron, 
leather, fur, hemp, flax or silk, or any such materials 
mixed with one another, or having been so entrusted, as 
aforesaid, with any other article, materials, fabric or 
thing, or with any tools or apparatus for manufacturing 
the same, sells, pawns, purloins, secretes, embezzles, ex- 
changes or otherwise fraudulently disposes of the same, 
or any part thereof. 

Article 426. t 

STEALING FROM SHIPS, WHARVES, ETC. 

" Every one is guilty of felony and liable to fourteen 
years' imprisonment who 

(a.) steals any goods or merchandize in any vessel, 
barge or boat of any description whatsoever, in any 
haven or in any port of entry or discharge, or upon 
any navigable river or canal, or in any creek or basin be- 
longing to or communicating with any such haven, 
port, river or canal ; or 

{b.) steals any goods or merchandize from any dock, 
wharf or quay, adjacent to any such haven, port, river, 
canal, creek or basin. 

■^ Article 421 

stealing wreck. 

* Every one is guilty of felony and liable to seven years' 
imprisonment who steals any wreck. ^ 

'S.D. Art.326(e.),(/.) 

"- R. S. C. 0. 164, 8. 49 ; 24 & 25 Vict. o. 96, 8. 6.3. 

^S. D. Art.325(ff.) 

< R. S. C. c. 81, s. 36 (c.) ; 24 & 25 Viot. o. 96, s. 64. 

^ The expression "wreck " includes cargo, stores and tackle jf any such vessel and of 
all parts of the vessel separated therefrom, and also the property of shipwrecked 
persons ; R. S. 0. o. 81, s. 2 («.) 



THE GRUHNAL LAW. 33'2 



Article 428. 

stealing things deposited in indian graves in 
british columbia. 

' Every qno who, in British Columbia, steals, or with- 
out the sanction of the Lieutenant Grovernor of the 
Province, cuts, breaks, destroys, damages or removes any 
image, bones, article or thing deposited in or near any 
Indian grave, or induces or incites any other person so 
to do, or purchases any such article or thing after the 
same has been so stolen, or cut or broken, destroyed or 
damaged, knowing the same to have been so acquired or 
dealt with, is liable, on summary conviction, for a first 
offence, to a penalty not exceeding one hundred dollars, 
or to three months' imprisonment, and for a subsequent 
offence, to the same penalty and to six months imprison- 
ment with hard labor. 

^ Article 429. ' 
clerks and servants. 

' Every one is guilty of felony and liable to fourteen 
years' imprisonment who, being a clerk or servant, or 
being employed for the purpose or in the capacity of a 
clerk or servant, 

(a.) steals any chattel, money or valuable security be- 
longing to or in the possession or power of his master or 
employer ; or 

(6.) fraudulently embezzles any chattel, money or 
valuable security, or any part thereof, delivered to or 
received or taken into possession by him, for or in the 
name or on the account of his master or employer, 
although such chattel, money or security was not received 

» R. S. C. c. 164, s. 98. 

s S. D. Art. 326 (A). 

' R. S. C. 0. 164, S8. 51, 52 i 24 & 25 Viot. c. 96, ss. 67, 68. 



338 A DIGEST OF 



into the possession of such master or employer, jtherwise 
than by the actual possession of his clerk, servant or 
other person so employed. 

' Article 430. 
public servants. 

^ Every one is guilty of felony and liable to fourteen 
years' imprisonment who, being employed in the public 
8ervice of Her Majesty, or of the Lieutenant G-overnor or 
government of any province of Canada, or of any munici- 
pality, 

(a.) steals any chattel, money or valuable security be- 
longing to or in the possession or power of Her Majesty, 
or of such Lieutenant Governor, government or munici- 
pality, or entrusted to or received or taken into jjossession 
by him by virtue of his employment ; or 

{b.) being entrusted, by virtue of such employment, 
with the receipt, custody, management or control of any 
chattel, money or valuable security,'* embezzles any 
chattel, money or valuable security entrusted to or taken 
into possession by him by virtue of his employme'^t, or 
any part thereof, or in any manner fraudulently applies 
or disposes of the same, or any i)art thereof, to his own 
use or benefit, or for any purpose whatsoever except for 
the public service, or for the service of such Lieutenant 
G-overnor, government or municipality. 

1 S. D. Art. 325 (t). 

2 R. S. C. c. 164, S8. 53, 54 ; 24 & 25 Vict. c. 96, ss. 69, 70. 

'' For any such offence any ofiBcer, clerk, or servant of any Government Savings' Bank 
(R. S. C. 0. 121, s. 19) or of certain savings' banks in Ontario and Quebec (R. S. C. 
c. 122, f . 32) are liable to imprisonment for life. Every officer of the post office embezzles 
public money if he converts it to his own use, or invests or lends it. His neglect or re- 
fusal to pay over or transfer or disburse such moneys when required so to do by the Post- 
master General is primd facie evidence of embezzlement. Every one who advises or 
participates in such embezzlement commits a misdemeanor and is liable to a fine equal 
to the amount of money embezzled and to imprisonment for a term not exceeding seven 
years and not less than three months ; R. S. C. c. 35, s. 106. Any militiaman who leaves 
Canada with any article of public clothing or other public or corps property in his pos- 
session is guilty of embezzlement ; R. S. C. c. 41, s. 56. 



THE CRIMINAL LAW. 339 



Article 431. 

public servants refusing to deliver up chattels, 
moneys, or books, etc., lawfully demanded 

OF THEM. 

' Every one who, being employed in the public service 
of Her Majesty or of the lieutenant governor or govern- 
ment of any province of Canada, or of any municipality, 
and entrusted by virtue of such employment with the 
keeping, receipt, custody, management or control of any 
chattel, money, valuable security, book, paper, account 
or document, refuses or fails to deliver up the same to 
any one authorized to demand it, is guilty of a fraudu- 
lent embezzlement thereof, and liable to fourteen years' 
imprisonment. 



' Article 432. 

bank officers and servants. 

- Every one is gailty of felony, and liable to imprison- 
ment for life or for any term not less than two years, 
who, being a cashier, assistant cashier, manager, officer, 
clerk or servant of any bank, or savings bank, secretes, 
embezzles or absconds with, any bond, obligation, bill 
obligatory or of credit, or other bill or note, or any secu- 
rity for money, or any money or effects entrusted to him 
as such cashier, assistant cashier, manager, officer, clerk, 
or servant, whether the same belongs to the bank or be- 
longs to any person, body corporate, society or institution, 
and is lodged with such bank. 

1 R. S. C. c. 184, 8. 55. As to auoh oflFencea committed by postmaaters, see 11. S. C. o. 35, 
B. 101 : and by members of the North West Mounted Police Force in respect of clothing, 
arms, etc,, when dismissed or discharged, R. S. C. o. 45, s, 22. 

2 R. S. C. 0. 104. s. 59 ; R. v. Cumminaa, 16 U. C. Q. B. 15, and R. v. Glass, 1 L. N. 41, are 
distances of embezzlement by clerks of banks. Section 59 is, in The Revised Statutes, 
included with thu provisions relating to frauds by agents, bankers or factors, and is one 
of the twelve sections mentioned in s. 71 and of the thirteen sections mentioned in s. 72 
of that chapter. It will be observed« however* that the offence is a felony and not a mis- 
''"meanor. See Art. 477. 

z2 



840 A DIGEST OF 



' Article 433. 
tenants and lodgers. 

^ Every one ■who steals any chattel or fixture let to be 
used by him, or her, in or with any house or lodging, 
whether the contract has been entered into by him or 
her, or by her husband, or by any person on behalf of 
him or her or her husband, is guilty of felony, and liable 
to imprisonment for any term loss than two years ; and 

if the value of such chattel or fixture exceeds the sum 
of twenty-five dollars, is liable to seven years' imprison- 
ment. 

Article 434. 

bringing stolen property into canada. 

^ Every one who brings into Canada, or has in his pos- 
session therein, any property stolon, embezzled, con- 
verted or obtained by fraud or false pretences in any 
other country, in such manner that the stealing, embez- 
zling, converting or obtaining it in like manner in 
Canada would, by the laws of Canada, be a felony or 
misdemeanor, knowing it to have been so stolen, embez- 
zled or converted, or unlawfully obtained, is guilty of an 
offence of the same nature and punishable in like manner 
as if the stealing, embezzling, converting or unlawfully 
obtaining such property had taken place in Canada. 

» S. D. Art. 326. 

= R. S. C. 0. 164 s. 67 ; 24 & 25 Vio. c. 06, s. 74, As to the fraudulent removal of goods by 
tenants, contrary to H Geo. 2, o. 10, s. 4, to prevent distress "ee Ji. v. Lackie, 7 0. R. 431. 

^ R. S. C. 0. 164, s. 88 ; 24 & 25 Vict. o. 96, s. 114. M. v. Btu, 5 All. 630, in which it was 
held that there must be evidence that the goods were stolen according to the law of the 
place where the act was committed, was decided under R. S. N. B. c. 158, s. 8, which dif- 
fered materially from the provision on which this Article is founded. See note, p. 632, 
in which R. v. Hennestey, 35 U. C. Q. B. 603 is cited. 



THE CRIMINAL LAW. 841 



CHAPTER XXXIX. 

' OBTAINING PROPERTY BY FALSE PRETENCES AND OTHER 
CRIMINAL ERA UDS AND DEALINGS WITH PROPERTY. 

' ^ Aeticle 435. 

obtaining goods, etc., by false pretences. 

Every one is guilty of a misdemeanor and liable to 
three years' imprisonment who 

(a.) ' by any false pretence obtains from any other per- 
son any chattel, money, or valuable security with intent 
to defraud ; or 

[b.) ' with intent to defraud or injure any other person 
by any false pretence, fraudulently causes or induces any 
other person to execute, make, accept, endorse, or destroy 
the whole or any part of any valuable security, or to write, 
impress, or affix his name, or the name of any other 
person, or of any company, firm or co-partnership, or the 
seal of any body corporate, company or society, upon any 
paper or parchment, so that the same may afterwards be 
made or converted into, or used or dealt with as, a valuable 
security. 

[It is not offence to obtain by false pretences any 
chattel which is not the subject of larceny at common 
law, but it is immaterial whether such a chattel so ob- 
tained is or is not in existence at the time when the false 

'[3 Hist. C. Law 160-2.] 

a S. D. Art. 329. 

" R. S. C. c. 164, s. 77 ; 24 Sc 2.5 Viot. c. 96, s. 88. A member of an unincorporated oompany 
cannot bo convicted of obtaining by false pretences the money of the company ; li. v 
St. Lovix, 10 L. C. 1\. 34. 

* R. S. C. c. 164, s. 78 ; [24 & 25 Vict. c. 96, s. 90. This section was meant to cover such 
oases as li. v. Bavger, D. & B. 307, and greatly extends the old law on the subject. See 
Mr. Greaves's note to the section in his edition of the Acts.] 



342 A DIGEST OF 



[prctonco is made if the thing when made is obtained by 
the false pretence. 

It is not an offence to obtain credit in a partnership 
acconnt by false pretences as to the amount which a 
partner is entitled to (charge against the partnership 
funds. 

Illustrations. 

(1.) ' A obtains two pointers worth £5 each by a false pretence. Tiiis 
is not an offence within this Article. 

(2.) - A orders a van from B, and gets it made and delivered !/ falsely 
pretending to be agent to a company. Tliis is an offence, altliough the 
van was not in existence when the pretence was made. 

(3.) ' A travels as agent for his partners, and obtains commission from 
them by falsely pretending he has received orders. His commission 
would form a charge on the partnership funds. This is not an offence 
within this Article.] 

Illustrations founded on Canadian Cases. 

(4.) * A obtains a loan upon the security of a lot of land by falsely 
representing that there is a brick house on the lot. This is a false 
pretence. 

(5.) ■' A takes B's note in part payment for a horse. After maturity A 
threatens to sue B, who gets C to pay the money, A promising to get the 
note from a solicitor's office where he said it was and give it up the next 
morning. A has in fact sold the note to another person. A obtains the 
money by a false pretence. 

(6.) " A, on a precipe that his clerk by his direction forges, obtains from 
the Accountant in Chancery a check payable to B, who is entitled to the 
money. There is no intent to defraud B. A obtains the check by a false 
pretence. 

(7.) ' A, who has been discharged from B's service, falsely representing 
herself to be in B's employ, purchases from C a parcel of goods, which C 
sends to B's residence, where they are handed -to B's servant. A having 
preceded the clerk who delivers the parcel, snatches it from the servant, 
saying " This is for me, I am going in to see B," and makes off. A obtains 
the goods by a false pretence. 

' [R. V. Robimon, Bell, 34. 

s K. V. MaHin, L. R. 1 C. C. R. 56. 

8 R. V. Evans, L. & C. 256. I am unable to follow the reasoning of this judgment.] 

* R. V. Huppel, 21 U. C. Q. B. 281. 
B R. V. Lee, 23 U. 0. Q. B. 340. 

• R. V. Parkinson, 41 U. C. Q. B. 5«. 
^ R. V. Robinton, 9 L. C. R. 278. 



THE CRIMINAL LAW. 343 



(8.) ' A falsely represontiiig that it ia valid sells to B a railway j)a8S 
good only to carry a particular pcrHoii, and which 1$ cannot uso without 
committing a fnuid on the railway. li iloes not at tho time know that 
the pass is not transferable. A ol)tains by a false pretence the money paid 
for the pass. 

(fl.) -' A to whom an order for 15 bushels of crain, that tho municipal 
authorities are distributing to the poor, has been given, obtains a second 
order by falsely pretending to have lost the first, and striking out part of 
the first order presents botii and has thorn filled. A obtains the second 
order, and the grain which lie receives thereon, by a false pretence. 

(10.) ' A gives B C's note for $100.00 in exchange for a horse, knowing 
at the time that tiie note lias been paid except as to a few dollars. This 
is a false pretence by conduct. 

(11.) 'A presents post ollico orders, knowing that they have been 
issued by a post-master fraudulently, and without any money having 
been paid therefor, and receives the amount thereof. This is a false pre- 
tence by conduct. 

(12.) ■' A is being supplied by B with gooils under an arrangement with 
C to pay therefor on the amount thereof l)eing endorsed on his (C's) note 
which A holds. A obtains goods from B on the promise in a tlay or two 
to bring the note to B to have the amount so endorsed thereon. A does 
not keep his promine. This is not a false pretence. 

(13.) " A obtains B's note on the promise, which he fails to keep, to give 
B $6,000.00 on what he then owed him, out of the proceeds of the note. 
This not a false pretence. 

(14.) ' B intending to pay A 75 cents takes out of his purse a $2.00 bill 
saying that he will get it changed. A says " I'll change it." Whereupon 
B hands the bill to A who makes oflf with it. A does not obtain it by a 
false pretence. 

(15.) •* A by a false pretence obtains from B a promissory note for 
$1,200.00, which B pays in four or five days and before maturity. A 
does not obtain the money by a false pretence. 

(16.) " A solicits B to purchase a package of counterfeit bank notes. B 
intending to bring A to justice, pretends to buy and gives A $50.00 and a 
watch as security for the balance that he agrees to pay for the package. 



' R. V. Abrahams, 24 L. C. J. 325. 

- li. V. Campbdl, 18 U. C. Q. B. 413. With respect to the grain it is a false pretence by 
conduct. 

» R. V. Davis, 18 U. C. Q. B. 180. 

* R. V. Dcsaauer. 21 U. C. Q. B. 231. 

<> R. V. Bertleg, 13 U. C. C. P. 607. 

« R. V. Pickup, 10 L. C. J. 310. 

' li. V. Gemmdl, 26 U. C. Q. B. 312. 

8 E. V. Bradv, 26 U. C. Q. B. 13. 

" R. V. Corey, 22 N. B. R. 513. The false pretence mu?t be that by which the com- 
plainant is induced to part with his property ; R, v. Brien, 12 E. L. 697. 



344 A DrOKHT OF 



A does not >?ive B tlio pncka>?o of countorfcit notes that iS in parting witli 
hifl property expects to receive, but a pucka^jeof waste pai)or. A obtains 
the money and watch by a false pretence. 

(17.) ' A represontinjj; himself to bo the atient of B by false representa- 
tions induces V, to 8ij.'n a contract to pay $240.00 for seed wheat. B after- 
wards calls n{)on V and procures him to siyn and deliver to him a promis- 
8ory note in his (B's) favor for fLMO.OO. The contract does not provide for 
the p'vinj.? of a note, and when the false representations are made a note 
is not mentioned, but C gives the note bocauHo he has entered into the 
contract. A by a false pretence has induced C to write his name upon a 
paper so that the same may afterwards be dealt with as a valuable 
security, 

-Article 436. 
definition of "false pretence." 

[The expression, " false pretence," in Article 435, means 
a false representation made either by words, by writing, 
or by conduct, that some fact exists or existed, and such a 
representation may amount to a false pretence, although 
a person of common prudence might easily have detected 
its falsehood by enquiry, and although the existence of the 
alleged fact was in itself impossible. 

But the expression "false pretence" does not include 

(a.) a promise as to future conduct not intended to be 
kept, unless such promise is based upon or implies an 
existing fact falsely alleged to exist ; or 

(b.) such untrue commendation or untrue depreciation 
of an article which is to be sold as is usual between sellers 
and buyers, unless such untrue commendation or untrue 
depreciation is made by means of a definite false asser- 
tion as to some matter of fact capable of being positively 
determined. 

' Illustrations. 

(1.) * A, not being a member of the University of Oxford, represents 

» R. V. liumal, 17 0. R. 227, 

2 S. D. Art. 330. 

" See also iilustrationg founded on Canadian cases Art. 435, 

* \R- V. Barnard, 7 C. & P. 784. The defendant said ho was a member of Magdalen 
College, but Bolland, B., said he would have left the case to the jury on the mere wear- 
ing of the dress if nothing had been si^id,] 



THE cm Ml XAL LAW. 345 



[liiiiiself to be suoli by wearing a stiulont'H cap and ^rown, and tboreby ob- 
taining n pair of straps froju a tradesman in Oxford. This is afalHO 
pretence l)y conduct. 

(2.) ' A presents a note for Co as a>;ood note for tbat amount, knowing; 
that tbo bank l)y vhich it was issued had stopped. This is a false pre- 
tence by coiuhict. 

(3.) - A Kive.s a ehocpie in disciiarne of a debt. Tiiis is a representation 
tliat A has authority to draw unon tlie bank for the amount of tlie ciieque, 
and timt the chetpU) is a i?ood and valid order for tiio payment of money. 
If those representations are untrue to tlio knowlediro of A, and if he in- 
tends to defraud and obtain tioods by makiufi them, lie commits the 
olfence of obtaining; jioods by false pretences, but the more givinj^ of a 
cheque is not necessarily a representation tliat the dra^v^^r has funds at 
the bank to meet it. 

(4.1 ■' The secretary of an Odd Follows' lodge tells a member that he 
owes the lodge 13s. (id., and thereby obtains that sum from him, wliereas 
in fact he owed only L's. I'd. This is a false pretence, though an enquiry 
might easily have been made. 

(5.) * A represents to B that A has power to bring back B's husband 
(who had run away) over hedges and ditc^hes, untl tluit a certain stuff 
which A has is suiliciont and ellectual for that purposo, and thereby 
obtains from B a dress and two six pences. This is a false pr tence, 
although the alleged fact is impossible. 

(6.) ^ A tells B that A is going to pay his rent on the 1st of March, and 
wants £10 to make up his rent, whereby he obtains £10 from B. This 
statement, though false, is not a false pretence, as it relates to something 
intended to be done at a future time. 

(7.) " A falsely tells B that A has bought skins, and wants fA 10s. to 
fetch them by the xailway, and that he will sell them to B if B will let A 
have the £4 10s. on account, which B does, partly because B believes that 
A has bought the skins, and partly because B believes tbat A will sell the 
skins to B. This is a false pretence, as part of it alleges falsely an exist- 
ing fact. 



' [Per Crompton, J., in Enans't Case, Bell, C. C. 192. The rost of the Court seemed to 
be of the same opinion. 

-It V. Hitzelton, L. R. 2 C. C R. 134. See, too, 1{. v. Jackson, 3 Camp. 870; R. v. 
Parker, 2 Moo. 1. There was some slight ditFercnce of opinion (or rather of expression) 
amongst the judges in tliis cnso. The judges wore anxious to point out that to give a 
cheque on a bank where the drawer has no balance is not necessarily an ofTence, as he 
may have a right to overdraw, or a reasonable expectation that if he does, his drafts 
will be honored. These considerations would seem to affoct not the falseness of the pre- 
tence, but the defendant's knowledge of its falsehood and his intent to defraud. 

'•' Woollev's Case, 1 Den. 559. See, too, R. v. Jessop, D. & B. 442. 

* R. V. Giles, L. k C. 502. 

» Lee's Case, L. k C. 309. 

« R. V. West, D. & B. 575.] 



84G .1 Dfr/KST OF 



[(8.) ' A olttiiins iiionoy frdin B by promiHinn to nmrry lior, and to 
funiisli a Ikxi.sh witli tli(\ iiKHicy, rrpn'Montiii^liiiiiMolf to l>o an uiiiiiiirrifld 
iiiaii. A in fact is luaniod. Tin- r«prt«H(Uitutioii tluit A was utimarriod 
is a false protonco, though tlie proin'iHUH bamul upon it would not have 
boon I'alwi protctict^H without it. 

(0.) - A iiiducoH li to l('iiil iiiiii nioiioy by siiyiuji that cortuiuHpooiiH are 
of tho best (piality, that tiioy are eipiul to Eli^i^^^ton's A (a (h'Siriptiou 
known in the trade), tliat tht< foundation is of the best material, and tiiat 
tlioy liave as niiicli Hilver in them as Klkin^?lon's A. Tliese words beiiif? 
construed as inure exa;z)<(tration of tlie (luality of tite H[)oons, and not us 
contuiniuK a statement of ndelinite fact us to the quality of silver in the 
spoons, are not a false pretence. 

(10.) ' A induces 11 to buy a chain by sayinji, " It is ir)-carnt iio\{\, and 
you will see it stamped fina on every link. It was made fur me, and I 
paid nine jruiiieas tor it. The maker told nic it was worth £') to sell as 
old Hold." Tl >< 'ain bad on every link the mark ir)-ct, Tiie chain in 
fact was (i-caral ^'oid, worth in all t'l5 Oa. ;5d. This is a false pretence.] 

(11.) ' A obtains from B a promissory note by the false representation 
that he is at the time prepared to advance him £100 thereon. This is a 
false pretence. 

''Article 437. " 

of " obtaining." . 

''[The word " obtains," in Article 485, means an obtain- 
ing by the offender from the owner, with an intent on the 
part of the offender to deprive the owner permanently 
and entirely ol' the thing" obtained, and it includes cases 
in which things are obtained by a contract which is 

' l/i*. V. ./fioiwon.L. .fc C.157. 

= J{. V. lin/'iii, D. it B. 2<i5. Thin, I think, is tho true view of the or.se. Willes, J., and 
Braniwcll, Ji., tliought the conviction siionid bo sustained on the ground that tho repre- 
sentation that the spoons had as much silvoron them as Elltington's A was a specific false 
pretence as to an existinK f,iot. T<jn other judges (Ciiupbeil, C.J., Coclcburn, C.J. 
Pollock, C.B., Coleridge, Crosswoll, Erie, Crompton, Crowder, JJ., and Watson and 
Channel, BB.)) all said in different words that the language used was mere puffery. The 
principle docs not appear to have licen doubted. The case <8 often, but I think wrongly, 
supposed to decide that a misrepresentation as to quality cannot be a false pretence. This 
depends on a further question whether the representation is made by means of alleging 
tho existence of a fact which does not exist. J{. v. Foster, 46 L. J. (M. C.) 128, is a later 
illustration of the principle of 7?. v. Bruan, 

' R v. Ardhy, L. R. 1 C. C. R. 301. 

* It. V. Gordon. L. R. 2;} Q. B. D. 354.] 

^ S. D. Art. 331. 

« [Illustrations (l)-(6).] It. v. Rymal, 17 0. R. 227. 



THE CRIMINAL LAW, :{47 

- — ... . ■ ■ ■ 

[obtained by a falso protoiico, unloss the obtaining- under 
the (contract is remotidy eonnected with tlio false pretenee. 

' lOvery one who, by any I'alse pretence, eaUHes or pro- 
cures any money to be paid, or any chattid or vahiable 
security to be d(>livenid to any other person I'or the use or 
benefit, or on account, of the person niakinj^ such false 
pretenee, or of any other person, with int»*nt to defraud, 
is deemed to havt^ obtained suth money, chattel, or valu- 
able security within the meaning- of Article 4;}5. 

- If the person from whom auythinjj is obtained by a 
person making a false pretence; is not deceived by such 
false pretence, but delivers the thing intended to be 
obtained by it, knowing the pretence to be false, such 
thing is not deemed to have been obtained by such pre- 
tence. 

' If a thing is obtained by the joint effect o'' several 
false pretences, any one of which is a false pretence 
within the meaning of the last Arti(!le, and if the thing 
would not have been obtained without that false pre- 
tence, it is deemed to have been obtained by such false 
pretence. 

* Illustrations. 

(1.) * A draws a bill upon B in London and gets it disconntod by C in 
Russia l»y falsely pretend inji, by means of a forged authority, that he is 
authorized to draw upon B for the amount of the bill. A does not attempt 
to obtain money by false pretences from B, though he meant that C 
should forward the draft to B, and sliould obtain payment of the amount 
and though tiis act if done in England would have been an obtaining by 
false pretences from C. 

(2.) " A by a false pretence obtains from B, a livery stable keeper, the 
use of a horse for the day, for which he would have been charged Ts. This 
is not obtaining goods by false pretences, as the horse was returned. 



' R. S. C. 0. 16), B. 77 ; 21 & 25 Viot. c. 96, s. 86. 

= [niu8trntion(7). 

' Illustration (8).] 

* Seo illustrations founded in Canadian oases, Art. 435. 

" [«. V. O'arntt, Deor. 232. 

•if. V. Kilham, L. R. I C. C. R. 261.] 



84H A DIGEST OF 



[(!).) ' A, by falao proUtncoH, iiuluccH I) to ontor into pnrtiiorNhlp with 
hiiUi mill to mlviincu UM) m purt uf tlic cnpttiii of tlio concorii. It trtmts 
tlin purtiiordliip hh iin oxlHtin^ ono, ainl <>ii(|(<iivt)rH to dipipoHti of IiIh 
inturoMt in if. A Iium iiol olittiinuil xr)0() by fulmu prutum:uH, on 13, aa 
partner, retiiinod Iuh intc^nwt in 1',. 

(4.) '■' A Induces H to buy a cIiombo at a biKlior priro tlian it la wortli, by 
inHcrtinj; in it a tiiPtc^r of sufHirior (|uiility to liio roHt of tiio <'lut('Me, and 
HO nial^iiiK It liidit>vt) tliat tiio wliolo iIiccho wnH of tlio muxw <|uality aH 
tbo taHter. Tliin \h ol)tuiniiiK inonoy by a fulso protontio. 

(5.) ' A inducoH 11 to lond liini XllKl on a doiioait of litlo duudn to land 
l)y falHiily protondinjr tliat a liouso liad l)oon built ujwn it wortli XJIOO. 
TliiH ia ol)taininK i^KK) by a false protiUKHt. 

(0.) ' A, by falHoly prt»tondin« to l)o a naval oll'u'er, induces H to enter 
into a contract to board and lod^^e liim at a guinea a weol{, and under 
tliiH contract \n HUpplind willi food for a \veel<. TliiH in not ()l)taininK' food 
by falHo j)r«tcnceH, as tlm Hupply of food in coii80(iuonco of tlu* contract is 
too remotely tbo result of tbo falso pretonco to booomo tlie subjoct of an 
indictment. 

(7.) ' A makes a falne pretonco to B to obtain money, wldob pretence 
is false to B's knowlod^,'e. 1> pays A tbo money and i)ro8ocutu8 liim for 
obtaining it by a false pretence. This is not obtaining money by a falso 
pretence. 

(8.) A falsoly pretends to B, (1), that he iw an tinmarried man; (2), that 
he will marry 13; (3), that if 13 will givo him US bo will furnish a house 
for bimsolf and I'er to live in after marriage- By these false i)retences he 
obtains tlie £8. Ka is deemeil to have obtained the XS by the falso pre- 
tence that he is an unmarried man, which is a false representation as to 
an existing fact.] 

(0 ) " A publishes an advertisement intended and fitted to convey the 
impression that there is a {lorsou named A. Brient living at Holt Trow- 
bridge, in the County of Wilts, who is a minister of religion, and that he 
has instituted a bond fide competition, and made arrangeme its to present 
prizes to the successful conpetitors and to givo the proceeds ('.erived from 



' [R. V. \7ataon, D. & B. 348. The judges (juarded in their judgment against the notion 
that fraudulently inducing a man to enter into a partnership could in no case be within 
the statute, as, lor instance, of the al'egcd existence of any trade which was a false 
pretonco. 

= U. T. Ahhntt, 1 Den. 273. 

•' H. V. Burgon, D. & B. 11. 

* 11. V. Gardner, D. & B. 40,] Sec also 11. v. McQiuin-ie 22 U. C. Q. B. COO. 
'' [11. V. Milk, D. & B. 205. It was, however, an attempt to obtain money by a false 
pretence.] 
« R. V. Handell, 16 Cox, C. C. 336, 



THE ClilMl^AL LAW. Nt 

[ till) (uitratwo fccH of ciiiiiinUitorH, nflur (UMlui'tiiiK tliH prinm, to a cliftritublo 
inHtittitioii. Tlioro In no miicIi iiemon uh tlitt Itov. A. Iirii<nt nt tlio mldrt-HH 
)t'i\M\, aiiil A r<M-Miv<<N iiixl iippMiiriutflH tlio entrunco fuos. TIiIh \h an 
uliliiiniiiK l*y 'uInu prutuncvu. 

' AliTiciiE 48H, 

INTENT TO DKI'IJAUl). 

[An iiitont to dcrniud, in tho oaso of offcnocH ngiiinst 
Article 4JJ5, is coiiHistcut with an iiitcut to initio tho olloct 
of the fraud if the ofl'ender should he able to do «o. 

IlUulrv'ion. 

'' A, l)y (jiIho prutuiicoN, induceH B to let liiin liave 801110 carpetH, inlunii* 
in^ to pay for them if lie hIkiuUI bo a))lu to do ho. Tiiis ia an intent to 
d(ifraiid.] 

'ArTI(!LE 480. 

CHEATIN(» AT PLAY. 

'Everyone who, by any fraud or unlawful device or 
ill practice in playing- any gaiao of cards or dice, or of 
any other kind, or at any ra«H', or in betting on any event, 
wins or obtains a)iy money or property from any other 
person, is held to have unlawfully obtained the same by 
false pretences. 

Article 440. 
obtainino passage on railways, etc., by false tickets. 
* Every one is guilty of a misdemeanor, and liable to 

' S. D. Art. 832. 

- IR. V. Navlor, L. R. 1 C C. R. 4.] 

■' S. D. Art. 833. 

* R. S. C. 0. 164, (.. 80 ; [8 & 9 Vict. c. 109, 8. 17. S 'e B. v. Hudion, Boll, C. 0. 263. for 
an illustration of what does not amount to a "game." As to "winning," it has boon 
doubted whether the money, &o.,mu8t be actually obtained, or whether winning the 
game by a false pretence would be within the section if the loser refused to pay the 
monoy : R.v- M<m, D. & B. 104.] The obtaining of any chattel, money or valuable secu- 
rity by gaming in railway o&n,&o., is an obtaining of the same by a false pretence; 
Art. 240 (a). 

'' R. S. 0. 0. 164, 8. 81. 



Sfttt . A DIGEST OF 



six mouths' imprisonment, who, by means of any false 
ticket or order, or of any other ticket or order, fraudu- 
lently and unlawfully obtains or attempts to obtain any 
passage on any railway or in any steam or other vessel. 

Article 441. 

^ pretending to enclose money, etc., in a post letter, 
and other frauds in respect to post i 
letters, and the postal service. 

^ Every one is guilty of a misdemeanor, and liable in 
case (a) to three years' imprisonment, and in cases (6), 
(c), (d.), (e.) and (/.) to five years' imprisonment, * who 

' (a.) for any purpose or with any intent, wrongfully 
and with wilful falsehood, pretends or alleges that he 
enclosed and sent or caused to be enclosed and sent in 
any post letter, any money, valuable security or chattel, 
which, in fact, he did not so enclose and send, or cause to 
be enclosed and sent therein ; or 

(&.) '' unlawfully opens, or wilfully keeps, secretes, 
delays or detains, or procures, or suffers to be unlawfully 
opened, kept, secreted or detained, any post letter bag or 
any post letter, whether the same came into the posses- 
sion of the offender by finding or otherwise ; or 

(c.) "^ after payment or tender of the postage thereon, if 
payable to the person having possession of the same, 
neglects or refuses to deliver up any post letter to the 
person to whom it is addressed or who is legally entitled 
to receive the same ; or 

(d.) ^ with fraudulent intent, removes from any letter, 

' As to other offences under the Post Office Act, see Articles 403, 404, 585 and 499 note. 
As to enclosing letter in other mailable matter, see R. S. C. c. 35, s. 93 ; and a. 108 as to 
using postage stamps, &o., that have been previously used. 

= R. S. C. c. 164, ss. 77, 79. 

^ Art. 17. 

* R. S. C. c. 164, 8. 79. 

6R.S.C.0. 35, s. 89. 

"Id. 

T Id. 8. 94. 



THE CRIMINAL LAW. 3BI 

newspaper or other mailable matter sent by post, any 
postage stamp which has been affixed thereon, or wil- 
fully, with intent aforesaid, rtanoves from any postage 
stamp or post card, post band or wrapper which has 
been previously used, any mark which has been made 
thereon at any post office ; or 

(e.) ' being a postmaster or other person authorized to 
issue money orders, issues any money order, unless he 
has previously received the purchase money or sum pay- 
able therefor ; or 

(/ ) - being a postmaster or other officer, agent or em- 
ployee of the Post Office Department, hypothecates, 
pledges or subjects to any lien in any shape or way, any 
postage stamps, stamped envelopes, post cards, post 
bauds or wrappers entrusted to him for safe keeping, sale 
or issue to the pablic, or for any other purpose, or 
attempts to commit such offimce. 

Aeticle 442. 
frauds by officeks and men of militia force. 

' Every one is guilty of a misdemeanor and liable to 
five years' imprisonment ' who 

{a.) being an officer commanding a corps of militia 

(i.) knowingly claims pay on account of any drills 
performed with his corps, for any man belonging to any 
other corps of m.ilitia ; or 

(ii.) includes in any parade state or other return any 
man not duly enrolled and attested as a militiaman ; or 

[b) being a non-commissioned officer or man of the 
militia claims or receives pay on account of any 
drill performed in the ranks of any other than his own 

iR. S. C.c. S5,s. TOO. 

« Id. 8. 102. 

' R. S. C. c. 41, ss. 91, 95. The offender is also liablo to be tried by cc rt martial in 
cases (a), (6) and (c) (ii) and in (c) (i) to bo dismissed the ;?ervice. The time within which 
an offender may be prosecuted is limited to six months ; ii. 112 

^ Art. 17. 



352 A DIGEST OF 



proper corps, or iu more than one corps during the 
annual drill in any year ; 

(c.) ' being an officer or non-commissioned officer of the 
militia 

(i.) obtains, under false pretences, or retains or keeps 
in his own possession, with intent to apply to his own 
use or benefit, any of the pay or moneys belonging to 
any officer or man of any corps ; or 

(ii.) signs a false parade state, roll or pay-list, or any 
false return whatsoever. 

Article 443. 

constables of the north-west mounted police force 
fraudulently obtaining pensions. 

- Every constable of the North-West Mounted Police 
Force who obtains any pension by any false repre- 
sentation or false evidence, or by personation, or by 
malingering or feigning disease or infirmity, or by 
maiming or injuring himself, or causing himself to be 
maimed or injured, or otherwise producing disease or 
infirmity, or by any other fraudulent conduct, is liable, 
on summary conviction, to imprisonment, with or with- 
out hard labor, for a period not exceeding twelve months, 
or to a fine not exceeding one hundred dollars, and shall 
forfeit the pension obtained. 

Article 444. 
selling vessel or wreck, not having title thereto. 

/ 

^ Every one lb guilty of felony, and liable to seven 
years' impriso.iment, who sells any vessel or wreck 
found within the limits of Canada, not having lawful 
title thereto. 

> R. S. C. 0. 41, s. 95. 

2 52 Vict, c 26 8. 11. 

3 R. S. C. 0. 81, 8. 36 (d,) For definition of " wreck " see ante Art. 427 note. 



THE CRIMINAL LAW. 353 



Aeticle 445. 

other offences respectina wrecks and 
marine stores. 

' Every one is guilty of a misdemeanor, and liable, on 
conviction on indictment, to two years' imprisonment, 
and on summary conviction before two justices of the 
peace to a penalty of four hundred dollars or six months' 
imprisonment, who 

(a.) secretes any wreck, or defaces or obliterates the 
marks thereon, or uses means to disguise the fact that it 
is wreck, or in any manner conceals the character thereof, 
or the fact that the same is such wreck, from any person 
entitled to inquire into the same ; 

(b.) receives any wreck, knowing the same to be wreck, 
from any person other than the owner thereof or the 
receiver of wrecks, and does not within forty-eight hours 
inform the receiver thereof ; 

{c.) oflfers for sale or otherwise deals with any wreck 
knowing it to be wreck, not having a lawful title to sell 
or deal with the same ; 

{d.) keeps in his possession any wreck, knowing it to 
be wreck, without a lawful title so to keep the same, for 
any time longer than the time reasonably necessary for 
the delivery of the same to the receiver ; or 

(c.) boards any vessel which is wrecked, stranded or in 
distress, against the will of the master, unless the person 
so boarding is, or acts by command of, the receiver. 

■^ Every one taking possession of wreck within the 
limits of Canada, who 

(a.) fails to deliver the same to the receiver of wrecks ; 
or 

(b.) whenever the Minister of Marine and Fisheries has 
dispensed with such delivery upon any conditions, does 

' R. S. C c. 81, s. 37 (a.), (rf.), (e.). (/.), (flr.) 
"■ R. S. C. 0. 81, 8. 27. 

2a 



3fi4 ^1 DIGEST OF 



not either comply with such conditions or deliver the 
wreck to such receiver as soon as possible, 

forfeits any claim to salvage, and is liable to pay as a 
penalty double the value of su<h wreck, and a further 
sum not exceedi. ^ four hundred dollars. 

' Every person who deals in the purchase of old marine 
stores of any description, including anchors, cables, sails, 
junk, iron, copper, brrss, lead and other marine stores, 
and who, by himself or his agent, purchases any old 
marine stores from any person under the age of sixteen 
years, is liable, on summary conviction, to a penalty of 
four dollars for the first offence and of six dollars for every 
subsequent offence. 

Every such person who, by himself or his agent, pur- 
chases or receives any old marine stores into his shop, 
premises or places of deposit, except in the day time, 
between sunrise and sunset, is liable, on summary con- 
viction, to a penalty of five dollars for the first offence 
and of seven dollars for every subsequent offence. 

Every person purporting to be a dealer in old marine 
stores, on whose premises any such stores which were 
stolen are found secreted, is guilty of a misdemeanor, and 
liable to five years' imprisonment. ^ 

Article 446. 

concealing gold or silver with intent to deb'raud 

partner in claim. 

•^ Every one is guilty of felony and liable to seven years' 
imprisonment who, with intent to defraud his co-partner, 
co-adventurer, joint tenant or tenant in common, in any 
claim, or in any share or interest in any claim, secretly 
keeps back or conceals any gold or silver found in or upon 
or taken from such claim. 

1 R. S. C. 0. 81, t. 35. See s. 34 an to the regulations to be observed by marine store 
dealers and the penalty for violation thereof. 

2 Art. 17. 

3 B. S. C. 0. 164, 88. 31, 5, 



THE CRIMINAL LAW. 366 



' Article 44Y. 

REMOVING OR CONCEALING ORES, ETC., WITH INTENT TO 

DEFRAUD, ETC. 

^ Every one is guilty of folony. and liable to imprison- 
ment for any term less than two years, who, being 
employed in or about any mine, quarry or digging, takes, 
removes or conceals any ore of any metal, or any quartz, 
lapis calaminaris, manganese, mundic, or any piece of 
gold, silver or other metal, or any mineral found or being 
in such mine, quarry or digging, with intent to defraud 
any proprietor of, or any adventurer in the same, or any 
workman or miner employed therein. 



Article 448. 
other unlawful dealings with gold and silver. 

Every one is guilty of a misdemeanor and liable to 
imprisonment for any +erm less than two years, who 

(a.) ' being the holder of any lease or license issued 
under the provisions of any Act relating to gold or silver 
mining, or by any persons owning land supposed to 
contain any gold or silver, by any fraudulent device or 
contrivance defrauds or attempts to defraud Her Majesty, 
or any person, of any gold, silver or money payable or 
reserved by such lease, or, with such intent as aforesaid, 
conceals or makes a false statement as to the amount of 
gold or silver procured by him ; 

(6) * not being the owner or agent of mining claims 
then being worked, and not being thereunto authorized 
in writing by the proper officer in that behalf, named in 

' S. D. Art. 340. 

- R. S. C. c. 164, 8. 26 ; [24 <& 25 Vi«t. o. 96, s. 39 re-enaoting earlier provisions. Passed 
in consequence of decision in R. t. Wehh, I Moo. 431.] 
'R.S.C. 0.164, s.27. 
* Id. 8. 28. 

2a2 



8S0 A DIGEST OF 



any Act relatiug to mines in force in any Province of 
Canada, soils or purchases (except to or from such owner 
or authorized person) any quartz containing gold, or any 
smelted gold or silver, at or within three miles of any 
gold district or mining district, or gold mining divi- 
sion ; or 

(c) ' purchases any gold in quartz, or any uusmelted or 
smelted gold or silver, or otherwise unmanufactured gold 
or silver, of the value of one dollar or upwards (except 
from such owner or authorized person), and does not, at 
the same time, execute in triplicate an instrument in 
writing, stating the place and time of purchase, and the 
quantity, quality and value of gold or silver so pur- 
chased, and the name or names of the person or persons 
from whom the same was purchased, and file the same 
with such proper officer within twenty days next after 
the date of such purchase. 

Article 449. 

warehousemen, etc., giving false receipts— know- 
ingly using the same. 

^ Every one is guilty of a misdemeanor and liable to 
three years' imprisonment who, 

(a.) being the keeper of any warehouse, or a forwarder, 
miller, master of a vessel, wharfinger, keeper of a cove, 
yard, harbor or other place for storing timber, deals, 
staves, boards, or lumber, curer or packer of pork, or 
dealer in wool, carrier, factor, agent or other person, or a 
clerk or other person in his employ, knowingly and 
wilfully gives to any person a writing purporting to be 
a receipt for or an acknowledgment of any goods or other 
property as having been received into his warehouse, 
vessel, cove, wharf, or other place, or in any such place 

' R. S. C. 0. 164, 8. 29. The offender is also liable to a penalty not exceeding in amount 
double the value of the gold or silver purchased. 
«R.S.C.o. 1M,8.73. 



THE CRIMJAAL LA W. 357 



about which ho is cmployod, or in any other man (^r 
received by him, or by the person in or about whose 
business he is employed, bel'ore the goods or other prop- 
erty named in such receipt, acknowledgment or writing 
have been actually delivered to or received by him as 
aforesaid, with intent to mislead, deceive, injure or de- 
fraud any person whomsoever, although such person is 
then unknown to him ; or 

(b.) knowingly and wilfully accepts, transmits or uses 
any such false receipt or acknowledgment or writing. 

Article 450. 

owners of merchandise ditjposino thereof con- 
trary to agreements with consignees who 
have made advances thereon. 

^ Every one is guilty of a misdemeanor, and liable to 
three years' imprisonment, who 

(a.) having, in his name, shipped or delivered to the 
keeper of any warehouse, or to any other factor, agent 
or carrier, to be shipped or carried, any merchandise, upon 
which the consignee has advanced any money or given 
any valuable security, afterwards with intent to deceive, 
defraud or injure such consignee, in violation of good 
faith, and without the consent of such consignee, makes 
any disposition of such merchandise different from and 
inconsistent with the agreement made in that behalf 
between him and such consignee at the time of or before 
such money was so advanced, or such negotiable security 
so given ; or 

(b.) knowingly and wilfully acts and assists in making 
such disposition for the purpose of deceiving, defrauding 
or injuring such consignee. 

No person commits an offence under this Article who, 
before making such disposition of such merchandise, 

'R.S.C.,c.l64,8.74. 



3B8 A DiarCST OF 



pji ys 01 tenders to tho consignee the full amount of any 
advance made thereon. 

Article 451. 

making false statements in receipts for property 
that can be used under " the bank act " — 
fraudulently dealing with prop- 
erty to which such re- 
ceipts refer. 

' Every person is guilty of a misdemeanor, and liable 
to three years' imprisonment, who 

(a.) wilfully makes any false statement in any receipt, 
certiiicate or acknowledgment for grain, timber or other 
goods or property, which can be used for any of the pur- 
poses mentioned in " The Bank Act ;" or 

{b.) having given, or after any clerk or person in his 
employ has, to his knowledge, given, as having been re- 
ceived by him in any mill, warehouse, vessel, cove or other 
place, any such receipt, certificate or acknowledgment for 
any such grain, timber or other goods or property, — or 
having obtained any such receipt, certificate or acknowl- 
edgment, and after having indorsed or assigned it to any 
bank or person, afterwards, and without the consent of 
the holder or endorsee, in writing, or the production and 
delivery of the receipt, certificate or acknowledgment 
wilfully alienates or parts with, or does not deliver to 
such holder or owner of such receipt, certificate or ac- 
knowledgement, the grain, timber, goods or other proper- 
ty therein mentioned. 

Article 452. 

innocent partners 

^ If any misdemeanor mentioned in any of the three 
Articles next preceding is committed by the doing of auy- 

1 K. S. C.) c. 164, 8. 75. See R.S C, c. 120, s. 53 (7), where the imprisonment for the 
offence defined in clause (n) is limited to two years. 
8R.S. C.,c.l64,8. 76. 



TJIE CltlMINAL LA W. 359 

thin2C in tho namo of any firm, company or oo-partnorship 
of persons, tho person by whom such thinj? is actually 
dono, or who connives at tho doimr- thereof, is guilty of 
tho misdemeanor, and not any other person. 



Article 453. 

assigning property with intent to defraud 

creditors. 

' Every one is guilty of a misdemeanor, and liable to a 
fine of eight hundred dollars and to one year's imprison- 
ment, who, 

(a.) with intent to defraud his creditors, or any of 
them, , 

(i.) makes or causes to be made any gift, conveyance, 
assignment, sale, transfer or delivery of his property ; " or 

(ii.) removes, conceals or disposes of any of his prop- 
erty;'' or 

(6.) with the intent that anyone shall so defraud his 
creditors, or any of them, receives any such property. 



Article 454. 

destroying or falsifying books with intent to 
defraud creditors. 

^ Every one is guilty of a misdemeanor, and liable to 
six months' imprisonment, who destroys, alters, mutilates 
or falsifies any of his books, papers, writings or securities, 
or makes, or is privy to the making of, any false or fraudu- 
lent entry in any book of account or other document, with 
intent to defraud his creditors, or any of them. 

' R. S. C, 0. 173, s. 28 ; 32 and 33 Vict., c. 62, s. 13. R. v. Rowland L. R., 8Q. B.D., 53. 

^" Lands, hereditaments, goods or chattels." 

'"Goods, chattels, property or effects of any description." 

♦R.S.C., 0.173,8.27. 



860 A DIGEST OF 



'j'AllTICLE 455. 

CONCEALING DEEDS OR INOUMUllANCES OR FALSIFYINO 

PEDIOREES. 

• Evory one is g'uilty of a misdomcaiior, iiiid liable to a 
fine or to two yoars' impriHOiiinont, or to both, who, 
being a seller or mortgagor of land, or of any chattel, 
real or personal, or chose in action, or the solicutor or agent 
of any such seller or mortgagor (and having be«»n served 
with a written demand of an abstract of title by or on 
behalf of the purchaser or mortgagee before the comple- 
tion of the purchase or mortgage) conceals any settlement, 
deed, will or other instrument, material to the title, or 
any incumbrance, from such purchaser or mortgagee, or 
falsifies any pedigree upon which the title depends, with 
intent to defraud and in order to induce him to accept 
the title offered or produced to him. 

No prosecution for any such offence shall be com- 
menced without the consent of the Attorney-Greneral of 
the Province within which the offence is committed, 
given after previous notice to the person intended to be 
prosecu+f^d of the application to the Attorney-Greneral for 
leave to prosecute. 

Article 456. 

frauds in respect to the registration of titles to 
land in british columbia. 

^ Every one is guilty of a misdemeanor, and liable to 
three years' imprisonment, who, in British Columbia, in 
any proceeding to obtain the registration of any title to 
land or otherwise, or in any transaction relating to land, 

>S.D. Art..335. 

*R. S. C.,0. 164, 3. 91 ; 22 and 23 Vict., c. 85, 8. 21. The words in parentheses are not in 
the English Aot- 
8 R. 8. C, 0. 164, 88. 96 and 97. 



77//V (CRIMINAL LAW. 361 

which is or is ])TopoH('d to bo put on the rcyiHtor, intiinr 
either as priiKripal or affcnt, knowinffly and with intent 
to de(u>ive, makes or assists or joins in, or is privy to the 
makinr^ of, any material false statement or representa- 
tion, or suppresses, conceals, assists or joins in, or is 
privy to the suppression, withholding^ or concealinp^ 
from any judge or reijistrar, or any person employed by 
or assisting the registrar, any material document, fact or 
matter of information. 

Article 45*7. 

frauds in respect to the registration of titles to 
land in the teuuitories. 

' Every one is guilty of a misdemeanor, and liabl to a 
penalty not excjceding five hundred dollars, or to impris- 
onment, with or without hard labor, for any term less 
than two years, who 

(a.) wilfully makes any false statement or declaration 
in any dealing in land under T7te Territories Real Property 
Act ; or 

{b.) suppresses or conceals, or assists or joins in, or is 
privy to the suppressing, withholding or concealing, 
from the registrar, court or judge, or either of them, any 
material document, fact or matter of information ; or 

(c.) wilfully makes any false statement in any c eclara- 
tion required under the authority of or made in pursu- 
ance of the said Act ; or 

(d.) fraudulently procures or is privy to the fraudulent 
procurement of any certificate of title or instrument, or 
of any entry in the register ; or 

(e.) knowingly misleads or deceives the court, the 
judge, the registrar, or any person by the said Act 
authorized to require explanation or information in 

' R. S. C. 0. 51, 8. 139. The offence is triable before a judge of the Supreme Court of 
the Korth-West Territories, or a stipendiary magistrate, without a jury. 



A DIQEUT OF 



TONpfict to any land or the titlo to any land under tho 
said Act, or in n^Hpt'ct to which any dealing- or trans- 
miuision iu proposed to he ro^iistered ; or 

(/.) in a party to or privy to any i'raudulent act what- 
evt^r in any matter connected with the working ol' the 
said Act. 

AuTKiliK 458. 

FRAUDULENT SALKS OF PROPKHTY IN QUEHEC. 

' Every one is guilty of a misdemoanor, and liable to a 
fine not excetuling two thousand dollars, and to on** 
year's iinprisonment, who, in the Province of Quebec, 
knowing the existence of any unregistered prior sale, 
grant, mortgages hypothec, privilege* or incumbrancre, of 
or upon any real property, fraudulently makes any sub- 
sequent sale of the same, or of any part thereof. 

. Article 459. 

fraudulent hypothecation of real property in 

QUEBEC. 

■ Every one who, in the Province of Quebec, pretends 
to hypothecate any real property to which he has no legal 
title, is guilty of a misdemeanor, and liable to a fine not 
exceeding one hundred dollars and to one year's 
imprisonment. 

The proof of the ownership of the real estate rests with 
the person so pretending to hypothecate the same. 

Article 460. 

fraudulent seizures of lands in quebec. 

' Every one is guilty of a misdemeanor, and liable to 
one year's imprisonment, who, in the Province of Quebec, 
knowingly, wilfully and maliciously causes or procures 

•K. S. C. 0. 164,88.92,93. 
- K. S. C. 0. 164, H8. 92, 04. 
^R. S. C. c 104, 88. 92,95. 



THE CJilMLSAL LA iV. 



368 



to 1)0 Ht»iz»'(l and takt'ii in i'xcciition, any lands iind tono- 
njcntH, or otlu'i- real propiTly, nitiiato within any town- 
Nliip in tho Provinti' ol' (^ucIm'*-, not ))»'inj^, at the time of 
8uch Hcizuro, tho homi fide property of tho porson or por- 
Bons au,ainHt whom, or whoso oNtate, the execution is 
iHsued, knowinjr i\u) namo not to be the proptTty of tho 
person or persons aji^ainst whom th»' execution is issued. 

Akticlk 4(n. 



UNLAWFULLY API'LVIN(f MAIIKM TO PUHLIC STORES. 

' Ev»;ry om* is guilty of a misdemeanor, and liable to 
imprisonment for any term h'ss than two years, who, 
without lawful authority, the proof of w^hieh shall lie on 
him, applies any of thes" marks mentioned in the note 
hereto in or on any public stores.' 

'."JOnndSl Vict. (D.)o. «,«. 4; .18 mid 3!l Vict. o. 25, b. 4. 

'''The murks deecriliod hy (lio followiiiKHchodulo iniiy bo iipplied hy iiny publlo depurU 
mvnt, iind tliu uunlruutors, oIllucrM iiiid uurknioii of xucli dcpurtmuiit in ur on uny publio 
itorei to denote Her MnJoKty'8 projierty in Huali xtorcs. 

SCIIEUULE. 
Murks ap/tropviiitml /)»• Her Mnjenti/'n mi- in or on JVJdvi/, Milititrii, Onlnnnce, Barrack, 

llonpilnl iiiitl Virluallinn Sturi'H. 



STORES. 
IIcmi)cn cordage iind wire ropo. 

Ciinvai, foamought hummocks and sea- 
men's buKS. 
Bunting. 
Candles. 

Timber, metal and other stores not before 
enumerated. 



MARKS. 

White, black or colored worsted tlircads 
laid up with tho yarns and the wire, 
respectively. 

A blue line in a serpentine form. 

A double tnpu in the warp. 

Blue or red cotton threads in oooh wiok, or 
wioka of rod cotton. 

The broad arrow, with or without the let- 
ters W.U. 



M(irkn (ippropriated for «*<• on gtorrx, the prnihrlti of Iter Miijettii in the right qf Her Gov- 
ernment of Cumula. 



STORES. 



Publio Stores. 



MARKS. 



The name of any publiu department, or 
the word "Canada," either ulono or in 
combination with a Crown or the Royal 
Arms. 

"In this and the five Articles next following, the expression "stores" includes all 
goods and chattels and any single store or article; and tho expression " publio stores " 
includes all stores under the care, superintendence or control of the Admiralty, of the 



364 A DIGEST OF 



* Article 462. 

taking marks from public stores. 

" Every one is g^uilty of felony, and liable to imprison- 
ment for any term less than two years, who, with intent 
to conceal Her Majesty's property in any public stores, 
takes out, destroys or obliterates, wholly or in part, any 
of the marks mentioned » in note (^) to the Article next 
preceding. 

Article 4bd. 

UNLAWFUL POSSESSION, SALE, ETC., OF PUBLIC STORES. 

^ Every one who, without lawfnl authority, the proof 
of which lies on him, receives, posses 3s, keeps, sells or 
delivers any public stores bearing any such mark as 
aforesaid, knowing them to bear such mark, is guilty of 
a misdemeanor and liable, on conviction on indictment, 
to one year's imprisonment, and if the value thereof does 
not exceed twenty-five dollars, on summary conviction 
before two justices of the peace to a fine of one hundred 
dollars or to six months' imprisonment with or without 
hard labor. 

Article 464. 

presumption where offender is in her majesty's 
service, or a dealer in marine stores, 

OR OLD METALS. ; k- 

* If the person charged with such a misdemeanor as 
last aforesaid was, at the time at which the offence is 



War Department, or of any public department or office of the Government of Canada, or 
of the public or civil service thereof, or of any branch of such department or office ; 50 
and 51 Vict. (U.). c i5, s- 2 (c), (d). 

'S. D. Art.. 341. 

= 50 and 51 Vict. (D.)e. 4o,.s. 5; 38 and 39 Vict. c. 25, s. 5. 

3 50 & 51 Vict. (D.)c.45,8s. 6,8; 30 & 31 Vict, c 119, ss. 7,9. 

< 50 & 51 Vict. (D.) c. 45, s. 7 ; 30 & 31 Vict. c. 119, s. 8. 



THE CRIMINAL LA W. 1565 



charged to have been committed, in Her Majesty's 
service or employment, or a dealer in marine stores, 
or a dealer in old metals, knowledge on his part that 
the stores to which the charge relates bore such mark 
as aforesaid, shall be presumed until the contrary is 
shown. 

Article 465. 

not satisfying justices that possession of public 

stores is lawful. 

' Every one, not being in Her Majesty's service, or a 
dealer in marine stores or a dealer in old metals, in whose 
possession any public stores bearing any such mark are 
found, who, when taken or summoned before two 
justices of the peace, does not satisfy such justices that 
he came lawfully by such stores so found, is liable, on 
summary conviction, to a fine of twenty-five dollars ; and 

If any such person satisfies such justices that he came 
lawfully by the stores so found, the justices, in their dis- 
cretion, as the evidence given or the circumstances of the 
case require, may summon before them every person 
through whose hands such stores appear to have passed ; 
and 

Every one w^ho has had possession thereof, who does 
not satisfy such justices that he came lawfully by the 
same, is liable, on summary conviction of having had 
possession thereof, to a fine of twenty-five dollars, and in 
default of payment to imprisonment for any term not 
exceeding three months, with or without hard labor. 

Article 466. 
searching for stores near her majesty's vessels. 
^ Every one who, without permission in writing from 

'50&51Viot. (D.)o. 45,8. 9;30&31Viot. c 128,s. 12. 
= 60&51 Viet (D.)c.45,8s. 11, 12;38&39Viot- c. 25, s. 8. 



3«6 A DIGEST OF 



the Admiralty, or from some person authorized by the 
Admiralty in that bohali', creeps, sweeps, dredges, or other- 
wise searches for stores in the sea, or any tidal or inland 
water, within one hundred yards from any vessel belong- 
ing to Her Ma-jesty, or in Her Majesty's service, or from 
any mooring place or anchoring place, appropriated to 
such vessels, or from any mooring belonging to Her 
Majesty, or from any of Her Majesty's wharves or docks, 
victualling or steam factory yards, is liable, on summary 
conviction before two justices of the peace, to a fine of 
twenty-five dollars, or to three months' imprisonment, 
with or without hard labor. 



:■-.', AjimcL:E 461. : f 

RECEIVING REGIMENTAL NECESSARIES, ETC., FROM 
SOLDIERS OR DESERTERS. 

' Every one is guilty of a misdemeanor, and liable, on 
conviction on indictment, to five years' imprisonment^, 
and on summary conviction before two justices of the 
peace to a penalty not exceeding forty dollars, and not 
less than twenty dollars and costs, and, in default of 
payment, to imprisonment for any term not exceeding six 
months, who, 

(a.) buys, exchanges or detains, or otherwise receives 
from any soldier or deserter any arms, clothing or furni- 
niture belonging to Her Majesty, or any such articles 
belonging to any soldier or deserter as are generally 
deemed regimental necessaries, according to the custom 
of the army ; or 

(b.) causes the color of such clothing or articles to be 
changed ; or 

(c.) exchanges, buys or receives from any soldier any 
provisions, without leave in writing from the officer 

iR.S.C. 0.169,88.2,4; 44and45 Viot. o. 58,8. 156. 
a Art. 17. 



THE CRIMINAL LAW. 367 



commanding the rogiment or detachment to which such 
soldier belongs. 

Article 468. 

receiving, etc., necessaries from marines or 

deserters. 

' Every one i.s guilty of a misdemeanor, and liable, on 
conviction on indictment, to five years' imprisonment," 
and, on summary conviction before two justices of the 
peace to a penalty not exceeding one hundred and 
twenty dollars, and not less than sixty dollars and costs, 
and, in default of payment, to imprisonment for a term 
not exceeding six months, who buys, exchanges or de- 
tains, or otherwise receives from any seaman v>r marine, 
upon any account whatsoever, or has in his possession, 
any arms or clothing, or any such articles, belonging to 
any seaman, marine or deserter, as are generally deemed 
necessaries, according to the custom of the navy. 

Article 469. : .; 

RECEIVING, etc., A SEAMAN's PROPERTY. 

^ Every one is guilty of a misdemeanor who detains, 
buys, exchanges, takes on pawn or receives, from any 
seaman,' or any person acting for a seaman, any seaman's 
property,'* or solicits or entices any seaman, or is employed 
by any seaman to sell, exchange or pawn any seaman's 

iR.SC. c. 169,88.3,4. 

2 Art. 17. 

^R.S.C. 0.171,8.2; 32 and 33 Vict. o. 57, s. 4. 

■* Tho expression " seaman " means every person, not being a commissioned, warrant or 
subordinate officer, who is in or belonps to Her Majesty's Navy, and is borne on tho books 
of any one of Her Majesty's ships in commission ; and every person, not being an officer 
as aforesaid, who, being borne on the books of any hired vessel in Her Majesty's ser- 
vice, is, by virtue of any Act of the Parliament of the United Kingdom for the time 
being in force for the discipline of the Navy, subject to the provisions of such Act ; R. 
S. C. 0. 171, s. 1 (6.) 

^The expression ''seaman's property " means any clothes, slops, medals, necessariea 
or articles usually deemed to be nesessaries for sailors on board ship, which belong to 
any seaman ; R. 8. C. o. 171, s. 1 (c.) 



368 A DIGEST OF 



property, unless he acts in ignorance of the same being 
seaman's property, or of the person with whom he deals 
being or acting for a seaman, or unless the same was sold 
by the order of the Admiralty ' or Commander-in-Chief. 

The offender is liable, on conviction on indictment to 
five years imprisonment, " and on summary conviction 
to a penalty not exceeding one hundred dollars ; and for 
a second offence, to the same penalty, or, in the discre- 
tion of the justice, to six months' imprisonment, with or 
without hard labor. 

Article 4t0. * 

NOT SATISFYING JUSTICE THAT POSSESSION OF SEAMAN'S 
PROPERTY IS LAWFUL. 

"Every one in whose possession any seaman's property 
is found, who does not satisfy the justice of the peace 
before whom he is taken or summoned that he came by 
such property lawfully, is liable on summary conviction, 
to a fine of twenty-five dollars. 

■ ■;->;,•':;:" Article 4*71. '':■?'■■■ 

unlawful disposition of arms, etc., of the militia 

FORCE. 

'Every one who unlawfully disposes of or removes 
any arms, -accoutrements or other articles belonging to 
the crown or a militia corps, or who refuses to deliver up 
the same when lawfully required, or has the same in his 
possession, except for lawful cause, the proof of which 
shall lie upon him, is liable on summary conviction to 
a fine of twenty dollars. 

^ The expression " Admiralty " means the Lord High Admiral of the United KinKdom, 
or the Commissioners for executing the office of Lord High Admiral ; K.S.C o. 171, s. 
1 (a.) ; 32 and 33 Vict. c. 57, s. 3. 

2 Art. 17. 

3R. S. C. 0.171,8.3; 32 & 33 Vict, c 57 s. 5. 

< R. S. C c. 41 8. 106. 



THE CRIMINAL LAW. 369 



Article 472. 

unlawful disposition of arms, etc., of the north- 
west mounted police force. 

' Every one who unlawfully disposes of, receives, buys 
c sells, or has in his possession without lawful cause, or 
refuses to deliver up when thereunto lawfully required, 
any horse, vehicle, harness, arms, accoutrements, clothing 
or other thing used for the purposes of the North-West 
Mounted Police Force, is liable to a penalty of double 
the value thereof and to a further penalty not exceeding 
twenty-five dollars, and, in default of payment forth- 
with, to imprisonment for any term not exceeding three 
months. 

- Article 4*73. 

conspiracy to defraud or extort. 

[Every one commits the misdemeanor of conspiracy] 
and is liable to seven years' imprisonment ■* [who agrees 
with any other person or persons to do any act with 
intent to defraud the public, or any particular person, or 
class of persons, or to extort from any person any money 
or goods. Such a conspiracy may be criminal, although 
the act agreed upon is not in itself a crime. 

lUmtrutions. ' 

The following are instances of conspiracies with intent to defraud : — 
* A conspiracy to defraud the public by a mock auction. 
"^ A conspiracy to raise the price of the funds by false rumors. 
" A conspiracy to defraud the public by issuing bills in the name of a 
fictitious bank. 



'R. S. C. 0.46 s. 23. 

' 8. D. Art. 33o. The ofifenoe is completed by the combination and agreement, although 
no step is taken in execution of the conspiracy ; Thayer v. R.5L. N. 162. 
'Art. 17. 

* [R. V. Leieit, 11 Cox. C. C. 404. 
' if. V. DeBercnger. 3 M. & S. 67. 
» R. y. ffeven, 2 East P. C. 868.] 

2b 



370 A DIGEST OF 



' [A conspiracy to indiu'o a person to buy horses by falsely alleging that 
tiiey were the projMsrty of a private person and not of a liorse dealer. 

- A conspiracy to indncio a man to tiilie a lower price than that for 
which he had sold a horse, by representing tiiat it had been discovered 
to bo unsound and re-sold for loss than had been given for it. 

'' A conspiracy to defraud a partner by false accounts, tho fraud not 
being in itself criminal when it was committed. 

* A conspiracy to defraud generally by getting a settling day for shares 
of a new company. 

■' Article 474. 

pretendina to exercise witchcraft. 

" Every one commits a misdemoanor who pretends to 
exercise or use any kind of witchcraft, sorcery, enchant- 
ment, or conjuration, or undertakes to tell fortunes, or 
pretends from his skill or knowledge in any occult or 
crafty science to discover where or in what manner any 
goods or chattels supposed to have been stolen or lost 
may be found. 

^ Article 475. 

cheating. 

" Every one commits the misdemeanor called cheating, 
who fraudulently obtains the property of another by any 
deceitful practice not amounting to felony, with practice 
is of such a nature that it directly affects, or may directly 
affect, the public at large. But it is not cheating within 

HR'V.Kenrivk,5Q.B. 49. 

^ Cnrlisle'n Cate, Dear. 337. . ; 

3i?.v. Warburton, L. R. IC. C. R. 274. 

< 7?. V. Atpinall, L- R. 1 Q. B. D. 730.] 

"^S.D. Art. 337. 

° [9 Geo. 2, c. 5, s. 4. Would it be a good defence to an indiotment for this offence to 
prove that the defendant not only " protended," but actually practised witchcraft ? As 
to witchcraft, see 2 Hist- Cr. Law, 430-6.] I have left this Article in the text although it 
is doubtful whether or not the Act on which it is founded would be held to apply to 
Canada. 

'S.D. Art. 338. 

8ByR. S. C. c. 173,8. 26 ( Art- 17) every one who is convicted of fraud, cheating or 
eooepiraoy is liable, if no special punishment is provided by statute, to seven years' 
imprisonment. See Tasch. Or. Stat. Law, (2nd ed.) 632-638. 



THE CRIMINAL LAW. 371 

[the meaning of this Article to deceive any person in any 
contract or private dealiuj^ by lies unaccompanied by 
such practices as aforesaid. 

Tlhi-<>lraHonit. 

(1.) The following are instances of clieating : — 

' Selling by a false weight or measure even to a single {)er8on. 

■^ Selling clothing with the alnager's seal forged uj)on it. 

•'.Soiling a picture by means of an imitation of the name of a well- 
known artist inscribed upon it. 

' Maiming oneself in order to have a pretext for begging. 

■' Selling unwholesome bread ns if it were wholesome. 

(2.) The following cases are instances of frauds not amounting to 
cheating :— 

" Delivering short weight of bread, no false weights or tokens being 
used. 

" Receiving barley to grind and delivering a mixture of oat and barley 
meal. 

" Selling as a Winchester bushel a sack of corn which is not a Win- 
chester bushel, but greatly deficient. 

" Article 4*76. 

concealing treasure trove. 

'" Every one commits a misdemeanor who conceals 
from the knowledge of our Lady the Queen the finding 
of any treasure, that is to say, of any gold or silver in 
coin, plate or bullion, hidden in ancient times, and in 
which no person can shew any property. It is im- 
material whether the offender found such treasure him- 
self or received it from a person who found it, but was 
ignorant of its nature.] 

'[W- V. yb«nff,3T. R. 104. 

2 2Rug3. Cr. 516. 

^R.Y. Clost, D. &B. 460. 

M Hawk. P. C. c. 15 ; 2 Russ. Or- 515. 

'2East.P. C.822; ^. v. Dixon,3M. &S.11. 

" if . V. Eaghton, Dear. 376. 

'if. V. HayneaATA- & S. 214. 

' Pincknev's Case, 2 Ea^t, P. C. 818.] 

»S. D. Art. 342. 

'" [3rd Inst. 132, and see R. v. Thomat, L. & C- 313 ] 

2b2 



312 A DIGEST OF 



CHAPTER XL. 

' hrauds by agents, trustees, and officers of 
co. vp a niks— false accounting. 

-Article 477. 
misappropriation by bankers, merchants, etc. 

Every banker, merchant, broker, attorney or other 
agent ' is guilty of a misdemeanor and liable to seven 
years' imprisonment, who 

(a.) ' having been entrusted, either solely or jointly with 
any other person, with any money or security for the 
payment of money, with any direction in writing '' to 
apply, pay or deliver such money or security, or any part 
thereof respectively, or the proceeds or any part of the 
proceeds of such security, for any purpose, or to any 
person specified in such direction, in violation of good 
faith and contrary to the terms of such direction, in any- 
wise converts to his own use or benefit, or the use or 
benefit of any person other than the person by whom he 
has been so entrusted, such money, security or proceeds, 
or any part thereof respectively ; or 
* (b.) having been entrusted, either solely or jointly with 

' 3 Hist. C. Law 150-16a 

"- S. D. Art. 3«. 

" [i.e., other agent like a banker, merchant, broker, or attorney. Tlie section is aimed 
at those classes who carry on the occupations or similar oooupations to those mentioned 
in the section, and not at those who carry on no such occupation, but who may happen 
from time to time to undertake some fiduciary position whether for money or otherwise ; 
Jl. V. Portugal, L. II. 16 Q. B- D, 487, 491.] li. v. Hynes, 13 U. C. Q. B., 194 ; E. v. Ami- 
«<ronfir,20U.C. Q. B.,245. 

<R. S. 0,0.164,8 60; 24 & 25 Vict., c. 96. 8.75. 

Every president or other oflScer of a bank is guilty of a misdemeanor and liable to two 
years' imprisonment who wilfully gives or concurs in giving any creditor of the bank any 
fraudulent, undue or unfair preference over other creditors. See as to false statements 
in accounts, Art. 519, schedule, R. S> C. o. 120, s. 81. 

^ [As to what amounts to a direction in writing, see R. v- Christian, L.R- 2 C. C R. 
94.] See, also, li. v. Cronmire, 16 Cox C. C. 42. 



THE CRIMINAL LAW. 373 

any othor person, with any chattel or valuable security, 
or any power of attorney for the sale or transfer of any 
share or interest in any public stock or fund, whether of 
the United Kingdom or any part thereof, or of Canada, 
or of any Province thereof, or of any British colony or 
possession, or of any foreign state, or in any stock or fund 
of any body corporate, company or society, for safe custody 
or for any special purpose, without any authority to sell, 
negotiate, transfer or pledge, in violation of good faith, 
and contrary to the object or purpose for which such 
chattel, security or power of attorney has been entrusted 
to him, sells, negotiates, transfers, pledges, or in any 
manner converts to his own use or benefit, or the use or 
benefit of any person other than the person by whom he 
has been so entrusted, such chattel or security, or the 
proceeds of the same, or any part thereof, or the share or 
interest in the stock or fund to which such power of 
attorney relates, or any part thereof ; or 

(c.) ' having been entrusted, either solely or jointly with 
any other person, with the property of any other person 
for safe custody,— with intent to defraud, sells, negotiates, 
transfers, pledges or in any other method converts or 
appropriates the same, or part thereof, to or for his 
own use or benefit, or the use or benefit of any person 
other than the person by whom he was so entrusted. 

- Nothing in this Article afiects any trustee in or under 
any instrument whatsoever, or any mortgagee of any pro- 
perty, real or personal, in respect to any act done by such 
trustee or mortgagee in relation to the property comprised 
in or affected by any such trust or mortgage ; nor restrains 
any banker, merchant, broker, attorney or other agent 
from receiving any money due or to become actually due 
and payable upon or by virtue of any valuable security, 
according to the tenor and effect thereof ; nor from selling, 
transferring, or otherwise disposing of any securities or 

'R. S. C. c. 164, s. 61 : 24 k 25 Vict. o. 96, s. 76. 
• R. S. C. c. 161, 8. 60 (2) ; 24 & 25 Vict. c. 96, s. 75. 



8T4 A DIOJ'JST OF 



effects in his possession, upon whi(^h he has any lien, chiim 
or demand, entitling him by hiw so to do, unless such 
pale, transfer or other disposal exteiuls to a j^reater number 
or part of su(^h seeuriti«'s or effects than are requisite for 
satisfying such lien, claim or demand. 
' [Clause (6.) does not extend 

to an agent who disposes of a chattel, valuable security, 
or power of attorney according to unwritten instructions 
given to him, and subsequently misappropriates the pro- 
ceeds thereof, unless (possibly) he is proved to have had 
an intention to misappropriate the proci^eds at the time 
when he disposed of the chattel, valuable security, or 
power of attorney ; nor 

' to an attorney who bi'ing entrusted with money to lay 
out on mortgage for his client misappropriates it, unless 
it appears specifically that he was to keep it with hira for 
safe custody until it could be so invested.] 



•'Article 4^8. 

misappropriatic.n under tower of attorney. 

^ Every one is guilty of a misdemeanor, and liable to 
seven years' imprisonment, who, being entrusted, either 
solely or jointly with any other person, with any power 
of attorney '' for the sale or transfer of any property, 
fraudulently sells or transfers, or otherwise converts the 
same or any part thereof to his own use or benefit, or the 
use or benefit of any person other than the person by 
whom he was so intrusted. 

' [This sceins to be the effect of /;. v. Tatlork, L. R. 2 Q. B. D. 157, and R. v. Cooper- 
L. R. 2. C. C. R. 123. In R. v. Tatloek the judges were not altogether unanimous. 
2 R. V. Newnidn, L. R. 8 Q. B D. 706 ; R. v. Cooper, L. R. 2 C. C R. 12.S.] 
3S.D. Art. 3«. 

*K.S.C. 0.161,8. 62; 24&25Vio';. o. 93,8.77. 
* Power of attorney means a written power of attorney ; R. v. Ckouinard, 4 Q. L. R. 220. 



THE cm MI SAL LAW. 376 

' Aktiole 471). 
misappuopuiation by kacitous oil aoents. 

- Every liu^tor, or afj^out oiitnistrd, cither solely or jointly 
with any other perKoii, for tht-s purpose oi' Kale or other- 
wise, with the poHsessiou ' ol' any floods, or oi" any 
document of title to goods, is guilty of a misdemeanor 
and liable to seven years' imprisonment who, contrary to 
or without the authority ol" his principal in that behalf, 
for his own use or benefit, or the use or benefit of any 
person other than the i)erson by whom he was so entrust- 
ed, and in violation of good faith, 

(a.) makes any consignment, deposit, transfer or delivery 
of any goods or document of title so entrusted to him as in 
this Article before mentioned, as and by way of a pledge,' 
lieu or security for any money or valuable security 
borrowed or received by such factor or agent at or befoul 
the time of making such consignment, deposit, transfer or 
delivery, or intended to be thereafter borrowed or received; 

(6.) accepts any advance ^ of any money or valuable 

'S. D. Art. 347. 

- R. S. C. c. 161. a. fi3 ; 24 k 25 Vict, c i»P, s. 78. 

•' Any factor or ii.Kont intrusted, na mentioned in the text, and posseaaedoi any such do- 
cument of title, whether derived iuimcdiiitoly from tlie owner of auch goods or obtained 
by ronson of such factor or agent having been entrusted with the posaesaion of the goods, 
or of any other document of title thereto, is deemed to have been entruated with the pos- 
session of the goods represented by such document of title. 

A factor or agent is deemed to bo posscased of aueh goods or document, whether the 
same are in his actual custody or held by any other person subject to his control, or for 
him, or on his behalf. 

A factor or agent in possession of auoh goods or document is taken to have been 
entruated therewith by the owner thereof unless the contrary is shown in evidence ; 
R. 8. C. c. 164, 8. 64 ; 24 it 25 Vict- o. 96. s. 79. 

For definition of agent and what is deemed possession under the Bank Act, see R S- C. 
O.120,s 53. 

■* Every contract pledging or giving a lien upon such document of title is deemed to be 
a pledge of and lien upon the goods to whiuh the same relates. 

'''Any piiyniunt made, whether by money or bill of exchange, or other negotiable 
security, is deemed to be an advance ; R, S. C. c. 164,8. 64 ; 2\ & 25 Vict, o- P6, s. 79. 

[ Where any loan or advance is bond. fide made to any such fa iter or agent on the faith 
of any contract or agreement in writing, to consign, deposit, ransfer, or deliver such 
gooda or documents of title, and such goods or documents of title arc actually received 



376 A D /(,'/•: ST OF 



8e(!urity oil t ho faith of uiiy contrui^t or agr»»om««nt' to 
conHign, deposit, truusfur or deliver uuy such goodu or 
document of title. 

No Huch fiu'tor or aj^cnit shall be liable to any prosecu- 
tion for con8if?nin«?, depoHiting, traUHferring or delivering 
any such goods or documentN of title, if the same are not 
made a security for or subject to th(5 payment of any 
great(ir sum of mon»^y i an th«^ amount which, at the 
time of such consignment, dc^posit, transfer or delivery, 
was justly due and owing to such agent from his prin- 
cipal, together with the amount of any bill of exchange 
drawn by or on account of such principal and accepted 
by such factor or agent. 

'^ ARTICIiE 480. 
ASfilSTINQ IN HUCH MISAPPKOmiATION. 

' Every one is guilty of a misdemeanor, and liable to 
seven years' imprisonment, who, knowingly and wilfully, 
acts and assists in making any such consignment, deposit, 
transfer or delivery, or in accepting or procuring such 
advance as aforesaid. 

' Article 481. 

fraudulent trustees. 

" Every trustee " of any property for the use or benefit, 



[by the purson maki <r the loan or advance without notice of the factor's or agent's wiint 
of authority, the Idiin or ndvniicu isduoincd to l)e m:ide on the security of the goods or 
document of title, tlioiigh tlic (roods or documents of title are not actually received by tiio 
person making the advanou till " tho period Bubso(|uent thereto"; 8. 79] H. S. 0. o 164, 
■ • 64. [The necessity for this explanation, >vhic)i is taken from part of s. 79] R. S. 0- 
0. 164, B. 64 [is not very obvious, nor do I understnnd what particular period is referred 
to by tho concluding words.] 

^ Any contract or tigreeracnt, whether made direct with such factor or agent, or with 
any clerk or otlier person on his buhulf , is deemed to be a contract or agreement with 
such factor or agent ; s^ 79 (R. S. 0- c 164, s. 64). Of course it is.] 

" S. D. Art. 318. 

«R. S. C. 0. 164, s. 63 (2); 24 & 25 Vict. c. 96, s. 78. 

«S.-D. Art. 349. 

OR.S.O. c. 164,8. 65 : 24 & 25 Vict. 0. 96, s. 80; li. v. Bnmett, 25 C.L. J. m. 

For definition of " trustee " see ante page 6. 



THE OlilMlNAb LAW. 877 



either in whole or in part, of sonio other person, or for 
any pul)li«* or chiiritubli' purpose, is guilty of a misde- 
meanor, and lia))le to seven years' imprisonim^ut, who, 
with intent to defraud, «onvertH or appropriates the 
same, or any part thereol", to or for his own use or benefit, 
or the use or benelit of any p-rson other than such other 
person, or for any purpose other than such publit; or 
charitabUi purpose, or otherwise disposes of or destroys 
8U«'h property, or any part tliereof. 

[A public puri)ose is such a purpose as w^ould ])e recog- 
nized as public! in a court of law, and not a purpose the 
exe<rution of which is a matter of publi(t iinportan<!e.] 

No pro»'e»'din<>; or prosecution for any offence men- 
tioned in this Article shall be comii,enced without the 
sanction of the Attorney-General or {Solicitor-General for 
the Province in which the same is to be instituted. 

When any civil proceedinj^ has been taken against any 
person to whom the provisions of this Article apply, no 
person who has taken such civil proceeding shall com- 
mence any prosecution under this Article without the 
sanction of the court or judge before whom such civil 
proceeding has been had or is pending. 

lUuttralioyif. 

[(I.) ' Tlio trustecH of a savings bank, which has printed rules one of 
which directs the manner in which the funds are to be invested, are 
trustees on an express trust created by an instrument in writing, but not 
for a pubhc purpose. 

(2.) ' Tlie purposes of an institution exemx^ted from liability to the 
poor-rate would be public. 

-Article 482. 

frauds by directors, members and officers of incor- 
porated companies. 

^ Every director, member, manager or officer of any 

» []{. V. FlHcher, L. k 0. 180.] 

» S. D. Art. 330. 

■'Ill tho Act of tho Uniti'd Kingdom the word "puWic" occurs before the words 
" officer " and " cuinpany ;" the word " manager" docs not occur in section 81 (a.) ; nor 
the word " member " in sections 82 and 84 (6.) and W) 



378 A DIGEST OF 



body corporate or company is guilty of a misdemeanor, 
and liable to seven years' imprisonment, who, 

(a.) ' fraudulently takes or applies, for his own use or 
benefit, or for any use or purpose other than the use or 
purpose of such body corporate or company, any of the 
property of such body corporate or company ; 

(b.) ' receives or possesses himself of any of the pro- 
perty of such body corporate or company, otherwise 
than in payment of a just debt or demand, and, with 
intent to delraud, omits to make or to cause or direct to 
be made a full and true entry thereof in the books and 
accounts of such body corporate or company ; 

(c.) ^ with intent to defraud, destroys, alters, mutilates 
or falsifies any book, paper, writing or valuable security 
belonging to the body corporate or company, or makes or 
concurs in the making of any false entry, or omits or 
concurs in omitting any material particular in any book 
of account or document ; or 

{d.) ' makes, circulates or publishes, or concurs in 
making, circulating or publishing any written statement 
or account which he knows to be false in any material 
particular, with intent to deceive or defraud any mem- 
ber, shareholder or creditor of such body corporate or 
company, or with intent to induce any person to become 
a shareholder or partner therein, or to entrust or advance 
any property to such body corporate or company, or to 
enter into any security for the benefit thereof. 

Article 483. 
frauds by officers and members of unincorporated 

BODIES. 

'' Every officer or member of any unincorporated body or 

'R.S C 0. 164, s 66; 2tcfe25Vict. c. 96,8. 81. 

-R.S.C. c. 164,8. 67; 24 .t 2^ Vict. o.96,s. 82 ; " as such director, etc." 
■■'R.S.C.c 164,8.68; 24 it 25 Vict. o. 96, 8. 83. 
4RS.C. c. 164,8.69; 24 At 25 Vict. c. 96, s. 84. 

* R.S.C c. 164,8. 70. As to officers or members fraudulently obtaining possession of 
property or bonks of a trade union see R.S.C c. 131, s. 12. 



THE CRIMINAL LAW. 379 

society, associated togethor for any lawful purpose, is 
guilty of a misdemeanor and liable to three years' im- 
prisonment, who fraudulently takes or applies to his own 
use or benefit, or for any use or purpose other than the 
use or purpose of such body or society, the whole or any 
portion of the funds, moneys or other property of the 
society, and continues to withhold such property after 
due demand has been made for the restoration and pay- 
ment of the same by some one or more of the members 
or officers duly appointed by and on behalf of the body 
or society. 

'Article 484. 

defence in certain cases. 

^ No one is liable to be convicted of any of the mis- 
demeanors mentioned in Articles 477-483 (both inclusive) 
by any evidence whatsoever, in respect of any act done 
by him, if, at any time previously to his being charged 
with such offence, he has first ' disclosed such act on oath, 
in consequence of any compulsory process of any court of 
law or equity, in any action, suit or proceeding bond fide 
instituted by any party aggrieved, or if he has first dis- 
closed the same in any compulsory examination or deposi- 
tion before any court, upon the hearing of any matter in 
bankruptcy or insolvency. 

is.D. Art.?5i. ■'--', ^■- -V: y-,.^- ;' 

2R. S. C. c. Ifi4, 9. 71 ; 24 k 25 Vict- e. 96, s. 85. 

•'lOn this word, which wiis not in tlie curlier Act, 5 & 6 Vict. c. 89, s. f.sce R. \.l<keen 
Bell,CC.97.] •:,. . ■ .v . . 



880 A DIGEST OF 



CHAPTER XLI. 

receiving. 

^ Article 485. 

receiving defined. 

" [A PERSON is said to receive goods improperly obtained 
as soon as he obtains control over ihem from the person 
from whom he receives them. 

Where goods are received by a wife or servant, in the 
husband's or master's absence, with a guilty knowledge 
on the part of such wife or servant, the husband or master 
does not become a receiver only by acquiring a guilty 
knowledge of the receipt of the goods by such wife or 
servant, and passively acquiescing therein, but he does 
become a receiver with a guilty knowledge if, having 
such knowledge, he does any act approving of the receipt 
of the goods. 

Property ceases to be stolen or otherwise improperly 
obtained within the meaning of this Article as soon as 
it comes into the possession of the general or special 
owner, and if such general or special owner delivers it to 
some one who delivers it to a person who receives it 
knowing of the previous theft or other obtaining, such 
receiving is not an offence within this Article. 

•S- D. Art. 353. . : 

= [^. V. W«7«/, 2Den.37. In this cnse the thieves carried stolen fowls into a stable 
belonging to the receiver's father. The receiver lighted them in, and was taken in the 
act of bargaining for them as they lay on the ground between the three men. Eight 
judges to four held that the conviction must be quashed ; substantially they all agreed 
in the proposition giren in the text, but they differed on the question whether, under the 
circumstances, the receiver had the control of the fowls or not. There was also some 
difference as to the effect of the terms in which the question had been left to the jury by 
the chairman of sessions who stated the oasc. For these reasons I have not attempted 
to turn the case into an illustration. The case of J{. v. J. Smith, Dear. 494, is somewhat 
similar. See, too, li. v. Hill, 1 Den. 453. In li. v. JiUUer, 6 Cox, C. C. 363, a person was 
found guilty of receiving who had never had possession of the goods except by a servant.] 



THE CHIMIN AL LAW. 381 



Illustrations. 

[(1.) ' A's wife in A'a absence receives stolen potatoes knowing them to 
be stolen. The jury lind that A " afterwards adopted his wife's receipt." 
This finding is not sufficient to sustain a verdict of guilty, as it is con. 
sistent with A's having passivelv consented to what his wife had done 
without taking any active part in the matter. 

(2.) -' A's wife in A's absence receives stolen goods and pays the thief 
6d. on account. The thief then tells A, who strikes' a bargain with the 
thief, and pays him the balance. A has received stolen goods knowing 
them to be stolen. 

(3.) •' B steals C's property. C finds it in B's pocket, restores it to B, 
and tells B to sell it at the same place where he has sold other property 
of C's. B sells it to A, who knows that it has been stolen. A commits 
no offence, as the property after being stolen has got into the owner's 
hands. 

(4.) * B steals goods from a railway to which they have been bailed. B 
then sends the goods to A by the same railway. A receives them, know- 
ing them to have been stolen, from the railway porter. A policeman 
employed by the railway discovers, whilst the goods are in transit, 
that they have been stolen, and causes them to be delivered to A in 
order to detect them. A has committed no offence under this article.] 



" Article 486. 

receiving property feloniously obtained. 

'' Every one is guilty of felony and liable to fourteen 
years' imprisonment who receives any chattel, money, 



1 [«. V. Drfn(7, D, & B. 329. 

- It. V. Woodwafd, L. & C. 122. A husband can receive from a wife who steals on her 
own account in his absence : R. v. McAthcy, L. & C. 250. 

' 7f. V. ZJoZan, Dear. 436. • ^ ; 

* R. V. Schmidt, L. R. 1 C. C. R. 15- Erie, C. J., and Metier, J.i dissented, on the ground 
that the company were the innocent agent of the thieves, and that the policeman 
merely looked at the goods, and took no possession of them.] 

5 S. D. Art. 354. 

" On an indictment for receiving it is necessary to prove possession and guilty know- 
ledge ; if.v. Foumier, 10 Q.L. R. 36; and there must be evidence that the goods were stolen, 
Ac. ;i?.v. /wrj/,26L. C. J.p.24,R. S. C. o. 164,s. 82 ; 24 & 25 Vict. c. 96, s. 91. The enact- 
ment which makes stealing by a partner a felony (R- S. C. o. 164, s. 58) is not contained 
in the Act of the United Kingdom 24 & 25 Vict. c. 96, but in 31 & 32 Vict, c 116, and it 
was held that it was not an offence under s. 91 of 24 & 25 Vict o. 96 to receive stolen 
goods, the stealing not being a felony either at common law or under that Act, although 
it waa a felony under 31 k 82 Viet. o. 116, a.l;R. v. Smith, L, R. 1 C. C R. 266. As to 
31 & 32 Viot. 0. 116 [which mak 9 stealing by a partner, &c., felony, see supra, Art. 375 ;] 



382 A DIGEST OF 



valuable security or other property whatsoever, the steal- 
ing, taking, extorting, obtaining, embezzling and other- 
wise disposing whereof amounts to felony, either at 
common law or by virtue of The Larceny Act, knowing 
the same to have been feloniously stolen, taken, extorted, 
obtained, embezzled or disposed of. 



1 



Article 481. 



RECEIVING PROPERTY OBTAINED BY THE COMMISSION OF 

A MISDEMEANOR. 

^ Every one is guilty of a misdemeanor and liable to 
seven years' imprisonment who receives any 'chattel, 
money, valuable security or other property whatsoever, 
the stealing, taking, obtaining, converting or disposing 
whereof is made a misdemeanor by The Larceny Act, 
knowing the same to have been unlawfully stolen, taken, 
obtained, converted or disposed of. 

. Article 488. 

RECEIVING property OBTAINED BY OFFENCE PUNISHABLE 
ON SUMMARY conviction. 

* Every one who receives any property whatsoever, 
knowing the same to be unlawfully come by, the stealing 
or taking of which property is, by Tlie Larceny Act, 
punishable, on summary conviction, either for every 



[R. V. Smith, L. R. 1 C. C. R. 206, an instructive, but I think a most unfortunate, deci- 
sion- It is exactly in the same spirit as li. v. Sadi, 1 Lea. 468, in which it was held that 
to receive a bank note knowing it to be stolen was not felony, because bank notes are 
not the subject of larceny at common law- See, too, E.v- Jiolinson, Bell, 0. C. 34i 
Art. 435, Illustration (1).] It is unnecessary to add that as the provisions against steal- 
ing by partners and against receiving stolen property occur, in Canada, in the same Act, 
the case of R. v. Smith would not represent the law here. 

' S. D. Art. 354. 

-R. S. C. c. 164,3.83; 24 & 26 Vict. c. 96, 8. 95. 

^ As to receiving stolen post letters fee Art. 403 (A.) ; and stolen timber. Art. 414. 

* R. S. C. 164, g. 84: 24 & 26 Vict, c 96, 8. 97. 



THE CRIMINAL LAW. 383 

offence, or for the first and second offence only, shall, on 
summary conviction, be liable, for every first, second or 
subsequent offence of receiving, to the same forfeiture 
and punishment to which a person guilty of a first, 
second or subsequent offence of stealing or taking such 
property is by such Act liable. 



884 A DIG' EST OF 



CHAPTER XLII. 

' FORGER Y IN GENERA L. 

- Article 489. 
definition of forgery — intent to defraud. 

' [Forgery is making a falso document, as defined 
in Articl(3 490, with intent to defraud. 

An intent to defraud is presumed to exist if it appears 
that at the time when the false document was made there 
was in existence a specific person, ascertained or un- 
ascertained, capable of being defrauded thereby, and this 
presumption is not rebutted by proof that the offender 
took or intended to take measures to prevent such person 
from being defrauded in fact ; nor by the fact that he 
had, or thought he had, aright to the thing to be obtained 
by the false document. 

The presumption may be rebutted by proof that at the 
time when the false document was made there was no 
person who could be reasonably supposed by the offender 
to be capable of being defrauded thereby ; but it is not 
necessarily rebutted by proof that there was no person 
who could in fact be defrauded thereby. 

It is uncertain whether, in the absence of any evidence 
as to the existence of any person who can be defrauded 
by a false document, an intent to defraud will or will 
not be presumed from the mere making of the document. 

An intent to deceive the public or particular persons, 
but not to commit a particular fraud or specific wrong 

1 [3 Hist. Or. Law, 180-188.] 

2 8. D. Art. 355. 

■' The wilful alteration, for any purpose of fraud or deceit, of any document or thing 
written, printed or otherwise made capable of being read, or of any document or thing 
the forging of which is made punishable by R. S. C. c 165, bhall be held to be a forging 
thereof ; R. S- C. c. 165, s. 8. 



THE CnmiNAL LAW. 386 

upon any particular person, is not an intent to defraud 
within the meaning of this Article. 

' IUuKlruii()}i9. 

(1.) - A makes u false rocoipt, the efTect of wiiieh, if the receipt were 
j;enuiiie, would be to render B accountable to C for a larger sum than B 
has in fact receivcHl on (J's account. A is j)ro8uined to have intended to 
defraud, althous^h the receipt was not used in fact, and was i)robably not 
intended to be used in I'act for tiie purpose of uicroasiu"^ B's liability. 

(2.) ■' A imitates a Bank of Enj^land note witli intent to defraud any 
person to whom it may be passed, but without specially intending to 
defraud the Bank of England. This is an intent to defraud. 

(3.) ' A makes a false acceptance to a bill of exchange, and puts it in 
circulation, intending to take it up, and actually taking it up before the 
bill is presented to the acceptor for payment This is forgery with intent 
to defraud. 

(4.) •' A being directed by his master to fill up a blank cheque with an 
amount to be ascertained, and to take up a bill with the proceeds, fills 
it up for a larger amount and keej)s the ditlerence on a claim that it was 
due to him for salary. Here there is an intent to defraud. 

(5.) " A pays to his credit ut a bank a false promissory note. The bank 
hold guarantees for a much larger amount. Notwithstanding this, the 
inevitable conclusion is that he meant to defraud. 

(6.) '' A signs B's name without his authority to two deeds of transfer 
of railway shares, by one of which the shares purport to be transferred by 
C to B, and by the other to be transferred from B to D. The circum- 
stances are such that no one can be defrauded by these deeds. ** This 
rebuts the presumption of an intent to defraud raised by the writing of 
B's name. 

(7.) " A imitates a cheque in B's handwriting and name on a bank at 



' See also Illustrations, Art. 490. 

= [^. V. i^ortcdmau, 2 Moo. & Rob. 147. 

■' 24 & 25 Vict, c 98, s. 44, would now apply interms to such a case. In R. v. Mazagnrn ' 
R. k K. 291, the judges held that the jury ought in such a case to have found an intent to 
defraud the Bank of England. 

< It. V. Oeach^ 9 C. Jk P. 499; and in the case stated by Coleridge, J., in R. v. Todd, 1 
Cox, C. C. 67. 

■' R. V. Wlhon, 1 Den. 284. 

'' Compare R. v. Jamci, 7 C. & P. 553, with R. v. Cooke, 8 C. & P. 582-5. I have taken 
the very words of Patteson,J. "Inevitable conclusion" is a little less strong and 
distinct than " conclusive presumption of law," an expression which the judge seems to 
have shrunk from. 

' This is a barely possible supposition, though Cresswell, J., held that it was so in R. v 
Marcus, 2 C. & K. 356. Rolfe, B., held otherwise in R. v. Hoatson, 2 0- &. K. 777, see 
note. 

« R. V. MarctM, 2 C. & K. 356. 

" R. V. Naah, 2 Den. C. C. 499.] 

2o 



381; A Bra EST of 



[wliicli, to A'h kiiowlodjKv 1{ lind lonji oonKed to keep an account. Tim 
jury niny infur IrotntliiH iiii ab.siMiro of iut«nt to dofraiul. 

(8.) ' A iiuitatOH 11 cIkuihh in IS'h nainu on a bank from which B liad, 
without A's knowhid^o, w ithdiawn liis l)idanco tlioday bofore. Here tlie 
fact that no ono could l)e dofraudod by tho falso ciiequo doe^ not robut 
tlio ijresuniption of an intent to defraud. 

()).) ■' A makes a false will. It does not appear whether there was or 
was not any person who could be defratided by it. ft is uncertain whether 
an intent to defraud is or is not to be i)reaumod. 

(10.) ' A forces a dii)loma of the Collojie of Surgeons, intending to in- 
duce a belief that the document is genuine, and that he is a member of 
the College of SurgoonH, and shows it to two persons with intent to induce 
that belief in them. This is not an intent to defraud within the meaning 
of this Article, though it is an intent to deceive. 

^ Article 490. 
making a fal8e document defined. ' 

To make a false document is 

(a.) ' to make a document purporting to be what in 
fact it is not ; 

(6.) '' to alter a document without authority in such a 
manner that if the alteration had been authorized it would 
have altered the effect of the document ; 

(r.) ^ to introduce into a document without authority, 
whilst it is being drawn up, matter which, if it had beeu 
authorized, would have altered the effect of the 
document ; 

{d.) to sign a document 

** (i.) in the name of any person without his authority, 

' [Thia and Illustration (7) are founded on the dictum of Maulo, J., in R. v. A'cwfe, 2 Den. 
C. C. 499. 

- TuO'n Case, 1 Den. C. C. 319. The Court were equally divided on a question which I 
submit was substantially the one stated. 

^ Ji. V. Hodpson, D. & B. 3. It wouid, however, be an offence under the Medical Act, 
21 & 22 Vict. c. 90, s. 40. This Act was passed in 1858, two years after the decision otll- 
V. Hodgson. The offence is " falsely pretending to be, &o , a surgeon, &o.," and the 
penalty is £20. The forgery of a diploma would seem to deserve more severe punish- 
ment.] 

< S. D. Art. 356. 

^ [Illustration (1).] 23. 

[Illustrations (2) and (3).] (22), (24), (28), (29), (31). (32). 

' [Illustrations (4) and (5).] (25). 

8 Illustration. (27). 



THE CRIMINAL LAW. H87 



[whothcr such name is or is not tho samo as that of tho 
porsoii signing ; 

' (ii ) in tho name of any liirtitious person alU^ged to 
exist, whcthor iho liotitious person is or is not alleged to 
be of the same name as the person signing ; 

■ (iii.) in a name represented as being the name of a 
dill'erent person from that of the person signing it, and 
intended to be mistaken for the name of that person ; 

' (iv.) in a name of a person personated by the person 
signing the document, provided that the effect of the 
instrument depends upon the identity between the person 
signing the document and the person whom he professes 
to be. 

But it is not making a false document, 

' to procure the execution of a document by fraud ; 

' to omit from a document being drawn up matter 
which would have altered its (effect if introduced, and 
which might have been introduced, " unless the matter 
omitted qualifies the matter inserted ; 

" to sign a document in the name of a person personated 
by the person who signs it, or in a fictitious name, pro- 
vided that the effect of the instrument does not depend 
upon the maker's identity with the person personated, or 
on the correctness of the name assumed by him. 

^ It is not essential to the making of a false document 
that the false document should be so framed that if 
genuine it would have been valid or binding, provided 
that in cases in w^hich the forgery of any particular 
instrument is made a specific ofience by any statute, the 
false document must, in order that the ofience may be 
completed, fall within the description given in the Act. 

' [Illustrations (6) and (7). 

2 Illustration (8). • 

^ Illustration (9).] (26). 

■i [Illustrations (IP), (11). ^j_ „ 

"> Illustration (12). '" '^ 

« Illustration (13). 

' Illustration (14). 

8 Illustrations (15)-(17).] And see notes to Art. 498 (c) and (/.) 

2c2 



388 -1 I > Id EST OF 



' [Tho tact that a document is mado to rcsoml)!*! that 
which it purports to be aud is not, is ovidoncc lor tho 
oonsidcratioii ot'tho Jury ol" an intent to del'raud, but is 
notessential to the makini*" oi'a false document. 

^ Provided that in cases in which the Ibrgcry of any 
particular instrument is made a specific olFence by any 
statute, the false document must have such a resemblance 
to the document which it is intended to ri'semble as to 
be likely to deceive a common person. 

Illuslrations, 

(1.) ■' A ronvevH land to B in foo. Aftorwurds A and C draw up and 
exeonto u deed purporting; to he oi' earlier date than tho fonvoyance to H, 
by whidi the same land i)urport8 to bo let to C for a term of 99!) years. 
The second doed is a faho document, tliouj,')! executed by A and ( '. 

(2.) ' A ohtaiuH a blanli acceptance from \i, vvitli authority to till it up 
for any amount not exceeding; C2(H). A fills it up for £500. This is a 
false document. 

{;{.) 'A persuades his servant, William Wilkinson, to write his name 
acros.s a stamped paper, so as to appear to bo the name of tlio accejrtor of 
a bill of exchanj^e. A then Alls up the bill and addresses it to Mr. 
AVilliam Wilkinson, Halifax, so as to make the bill appear as if it had 
been drawn upon and accepted by a diilerent William Wilkinson. Tliis 
is a false document. 

(4.) " A gets B to sign a receipt, and afterwards makes additions to it, 
so as to make it appear that a larger sum was paid to B than had 
actually been paid. The altered receipt is a false dotniment. 

(5.) ' A, employed to draw up B'a will, inserts 'n it legacies out of his 
own head. The will is a false document. 

(6. ) ** Sheppard signs a draft in the name of H. Turner, Junior, of Noah'rf 
Row, Hampton Court, tliere being no such place or person. The note is a 
false document. 



• [Illustration (18). 
- Illustration (19). 

3 Ji. V. Jtiiaon, L. R. 1 C. C K 2C'0. and in 1 Hawk. P. C. 264. 

* R- V. Hart, 1 Moody 486 ; 7 C. & P. 652. In this case the words " £2U0 " were written 
in tho oorner of the blank acceptance, and erased. Littledale, J., however, told tho jury 
that the filling up the acceptance for a greater amount than that which was authorized 
was forgery ; R. v. Bateman, 2 Russ. Or- 715. 1 Cox, C-C. 188, ia to the same effect. 

^'R. V. Blenkinsop.l Den. CO. 277; 2Rus9. Cr. 724. 

*> R. V. Oriffltha, D. & B . 518. It is not easy to see why this case was reserved. 

n Hawk. P.O. 264. 

^Sheppard'» Case, 1 Lea. 226.] Ex parte Cadbu 26 N.B.R. 462. 



THE CHIMIN AL LAW. ;]89 



[(7.) ' ThotmisUrowii uutliori/oH Ht()8i(j;n h prom Ihhc try note in tlionumo 
of Tlioiniw Ilrown, in order tliat il Ujij^lit \w iiHod rh t!io note of u ditluront 
anil oDlireJy (IctltjouH Tlionms Mrown. 'i'liis is a fivlso docnmpnt, whetlior 
J5 knmv or not of tiio umm for wliicli llio noto wiiH intondoil. 

(8.) -'B H)JtreoH to^ive A time for tlio payuiontof a dobt, if A will ^t^t hiu 
motlierin-law, ('. Waters (wIkwo Christian nanio i.s niiknown to H), to 
execute n promissory note. A j^ets his wifo to si^n the noto in her maiden 
name, "A. Waters," and produiies the note to \\ as the note of his mother- 
in-law. This is a false document 

(!).) ' A, personating the Hon. A. A. Hope, the brother of the Karl of 
HojKUown, draws a bill of exchanm* in tiu» mime of A. A. IIojh) on a jK^r- 
8on to whom he was known by that name, and who would have paid it 
if A had really been A. A. Ho|)e, the brother of X\w Earl of Hojx-town. 
The bill is n false document, though the person on whom it watt drawn 
knew and jJtave (credit to the iHjrson who drew it. 

(10) 'A t^ols B to make his mark to a deed by reprosentinn it to be a 
recitiisition to a person to stand for a seat in Parliament. A does not make 
a false document. 

(11.) 'A reads B a document by which an action isnj^rood to be settled 
fori;!). B agrees to sign it, and pays the t\). A, before B signs it, allora 
the y to 1-'. A does not niake a false document. 

(12.) "In drawing up B's will, A omits a legacy to C. A does not make 
a false document. 

(1:5.) " In drawing up B's will, A omits a devise of an estate for life to 
C, whereby the will o|)erates to give D an estate in possession, and not in 
remainder, on B's death. A makes a false document. 

(14.) " A, per.sonating B, draws a cheiiuo in his assumed name of B, on 



'[/!■• V. />(((•/,•<-(, 2 Lea. 775. 

"]{. V. Malwnvy, 6 Cox, C.C. 487; 2 Russ- Cr. 631-5. 

'/^ V. Ifd'H'iild, 2 Iluss. Cr 040. Tliis ia tlio well known case of the man who mar- 
ried the girl known as the Ueiiuty of Ikittorniere. 

< 11- V. Collina, 2 M. & R. 4(il. But see Mr. Greaves' remarks (2 Russ. Cr. (4 od.) 718, 
note ) .Mr. Greaves suggests, I think rightly, tiiat this was a case of forgery by an 
innocent agent, U. 

'i^ V. Vh<i<hi-irk, 2 M. k R. 545. 

"1 Hawkins, P. C. 2115. The distinction scorns idle, a? every omission of a legacy must 
increase the residue. 

' Such, I submit, would be the law, thougli I know of no case in which the precise ques- 
tion has boon determined. If tlie law is otherwise, a person passing by a false name 
would go half way to forgery every time he signeil it. If a man passing by a false 
name drew many bills and regularly provided for them, and at last drew one for which 
hecould not and ought to have known that he could not provide, I do not think he would 
bo guilty of forgery any more than if he had used his own nami. The use of a false 
name is no doubt a fact from which an intent to defraud may often be inferred, but 
which is a different matter. See the observations of SirE. H. East on AicJdcs' Ccnie,2 
East, P. C 969. Since the first edition of this work was published the ease of /?. v. 
Martin, L.R. 5 Q.B.D- 34, has been decided, which, without going quite as far as Illus-] 



890 A DfORST OF 



[n liaiik with wliicli in ITih unhiiiiuuI iiuiiim lio liiul oihmkhI uiruiitiiiiH uccDiuit 
by tlie iictiiul puyiiKiiit of iiumey to liiu crutlit. A (1(H)h not iiuiko a I'uIho 
dociiiiHMit. 

(15.) ' A, witli intent to dofniiul, ciiiintorfellH tiiu will of a living |HtrHon. 
A \h >tiiiUy of for^'nry. 

(Ifl.) -' A, with iiit(M)t to (ixfraiiii, couiitnrfcntH a l)ill or«x(>huii).'o on nn- 
HtuMiiMMl paper, a Htaiiip h(un^ uoreHHary totho vali<lity of hucIi a liill. A 
conuiiitH fornoiy. 

(17 ) ' If a poJHoii iH indiftod for for(?in>f a hill of oxchango, it must ho 
shown that tho dociiiiiout for)^'(>d Ih a hill of ox<-han^'e. 

(18.) ♦ A Ih (;har^r(■d with f«tr^;inK a Hank of Knuland note If thi< rohoni- 
blanco of tho for^fcd and th(» real ii'>tt( is Hiilliciont to <loct»ivc a lominon 
person, the conviction will not ho (|iuiBhod, hocauHo in certain important 
pnrticnlars the two docnnjentH dillor. 

(li) ) ' A fori^cH a nolo in tlicHo wordu, " I proniiHo to pay lor Holf and 
company of my hank in Kn^^land." A cannot ho convi<'tod of forj^ing a 
Bank uf Kn;;lund lujtc.] 

TllmtratiovK Founded on Camtdian Caseg. 

(20) "A, in company with B, finds a paper pnrimrtin^ to ho a promis- 
sory nolo mado hy T. It had in fact been made by some boys who were 
amusing thfiuHiIvos, and had been thrown into the lire and carried np 
the chimney by tho draft. H oxpresseH tho opinion that tho note is not 
good and advises A to destroy it; but A keeps it and afterwards passes it 
oil', toUinK tho jwrson who takes it that it is good. A is guilty of a felonious 
uttering. 

(21.) 'At common law an indictment would not lio for forging or alter- 
ing the assessment roll of a township deposiied with tho township clerk. 

(22.) " A makes a note payable two months after date in favor of B, 



[tration (11), confirms the view smrgcstcil by it. In tliat ciise, Uoliert Martin, for some 
rcooon wtiicli (lilt not appear, drow in payment for a pony a cheque in thi' name of 
William Martin on a Ijank where ho had ceased to have an account. This was held not 
to be forgery, though it was obtaining tho pony by a faUo pretence. Sec, too, li. v. 
/>Knn, 1 Leach, CC. 59. 

1 Mwv/ii/'a r<iie, 2 East, I'.C. 949. 

^ Ihneki'nwood'H Ciiar, 2 Eastj P.C. 955. 

•■'See several cases collected in 2 Iluss. Cr. '755-61, all of which turn on the question 
whether peculiarly worded instruments answer the statutory description given in the 
indictment. 

* Elliot's ruse, 2 East, P.O. 951. 

^Jones's Case, 2 East, PC. 953. He might however be convicted, if he changed such 
a document) of obtaining goods by false pretences.] 

"ii. v. Dunlop,15\].G Q.U. 118. 

^E. V. PrealoH.2l U.C.Q.B. 86. 

^Ji. V. Craig, 7U.C.C.P. 239. See also Ji- v. McNevin,2 R.L- 711, whore the note 
was raised from $500 to $2,500. 



Tin: CHIMIN. \L law. \\n 



wild ondornon if. A then ul»(>rs tlic unto Crnni two to tiirre nioiitlis and 
liiiH itdiHcoiiiitiul lit n luiiik. A fnru^H tlio noto. 

('j;t.) ' A, with int(M)t til (lofmiiil, writnH out a tolo^rapli iiiohha^o piir- 
p<irtiii^' to l>u Hont by H, at Ilainiltoii, to (', at \Vo<i(latiici<,aiitiiori/iii^ (' to 
j{iv«! A wliat money lit* nM|iiirt'M, Iiuh it dnlivonid to V,, and <in tlin Cuilli ^A' 
it prociuoH ( 'h ondorHuiiittnt to a dratt on 11, wliidi Ih dim-ounloU l>y a 
bank IVir A. A coinniitH fornory. 

(24) ■' Tlio altoratido, with intent to defraud, of a $2.00 Doniitdon not^i, 
by atidini,' a eiplmr al't«r Iho ll>{uro l', whoraver tliat occurs iu tho nuir^;in 
of the note, is lor;;ory. 

(25.) ' A beiuK oniployed to write the will of 15, an iHit((rato|»er8on, with 
intent to >;et H'h pro|H»rty, \vrit(»M a will cdiitrary tn inHtructions and read8 
it to U inact'urattily, thuruliy inducing li to uxucute it. A coinniitfl 
forjrtiry. 

The caxct on which the JhlUmimj Illmtrationit utr foundtil arow under the 
ExtnulHmn Trenlij of 184U with the Unittd States. 

(20.) ' A, who lian i» |)owor of attorney from II, with intent to defiaud, 
roncoals that fact, and, representiu'.' hiniHidf to lie B, oxecutoH a deed in 
JVs name. A commits Inr^jery within tho'l'reaty. 

(27.) ' A, falwdy reprcHentin^; that he Iiuh authority to receive a war- 
rant for money in favor of li, sinns IVs name to tho receipt tlierefor. Tin's 
iH foruery, acoordintr to the law of Ptumsylvania, wlioro the oiTenct* ic 
comtnitted. A commits forgery within the Trejity. 

(28.) " A, a clerk in the otlico of the Comptroller of tlie city of Newark, 
U.S.A., whose duty it is to make in the olliciul books of such Comptroller 
proi)er entries of moneys received for taxes, havin^^ received a sum of 
money for taxes, enters in such boolvs tiie correct amount, and then 
erasint; thotnie lij^ures inserts a loss sun , with intent to benefit liimself 
by the abstraction of the difference between the two amounts, and to 
deceive the Comptroller and the municipality. A commitH fori-'cry 
within the Treaty. 

(25).) ' A, the collector of a county, after the same has been audited and 
with intent to cover up a defalcation, makes false entries in a liook of 
account, the property of the county, kept by him as such collector, of 



' /;. V. Stewart, £5 U. C. C. P. 440. 

■^J{.v.B(iil,7 0. R. 228. 

"^a/iv. Cn»(j/, James 879. 

* In re Gould, 20 U. C. C. P. 15J. 

•' Inrt' l'h{pj)M,l 0. 11.580. By Ilagnrty, C. J., and Armour, J. (Ciimoron, J., dis- 
aenting ; and on appeal (8 Ont. A. R 77), by Spragge, C. J. 0., and Patterson, J. A , 
(Burton, J. A., and Ferguson, J, dissenting). 

'' In re Hn/l, 30. R. 331. (By Boyd, 0. Proudfoot and Ferguson, JJ., and on appeal 
(8 Ont. A. R. 31) by Spraggo, C. J. 0., and Gait, J. (Burton and Patterson, JJ. A., dis- 
senting). 

' In re Jitrranl, i 0. R. 265. 



392 A DIGL r OF 



moneys received and paid out by him, and changes the additions to 
correspond. A commits forgery within tlie Treaty. 

(30.) ' The niakint; of faUe (!oin is not forgery. 

(31.) '^ To fill up without authority and for a fraudulent purpose, drafts 
signed in blank is forgery within the Treaty. 

(32.) •' A, with intent to conceal a fraud previously committed, alters a 
statement of account such as is received by a bank from other banks 
having business connections with it, and which contains an acknowledg- 
ment of the receipt of money to be accounted for. A commits forgery 
within the Treaty. 

(33.) ' A, a clerk in a bank, makes false entries in the bank books under 
his control to enable him to obtain the money of the bank improperly. A 
does not commit forgery within the Treaty. 



•''Article 491. 



" DOCUMENT." 



[The word document in Articles 489 and 490 does not 
include trade-marks or other signs, though they may be 
written or printed. 

Illustrations. 

(1.) '' A paints a picture, and intending to represent that it was painted 
by an eminent artist, writes that artist's name in the corner. This may 
be a cheat, but is not forgery, 

(2.) ' A prints a number of wrappers imitating advertisements in which 
egg powders were wrapped for sale by B their maker. He incloses 
spurious egg powders in the wrappers, and sells them. This is not forgery, 
though it is obtaining money by false pretences.] 



1 In re Smith, 4 Ont. P. R. 215. 

2 In re Hul-c, 15 R. L. 92, 99. 

8 E.r parte Dihatin, 4 M. L. R. 145 ; 32 L. C. J. 281 ; 16 R. L. 612. 

* R. V. Blacl-Htone, 4 Man. L. K. 296 ; In re John C. Eno, 10 Q. L. R. 194. See also 
Ex parte Lamiiande , 10 L. C. J. 280, which came up under the treaty with France. 

6 S. D. Art. 357. 

« [R. V. Closi, D. & B. 460. 

' R. V. Smith, D. & B. 566. It would seom as if in this case the clement wanting to 
complete the otrence was the intent to defraud by means of the document, rather than 
the absence of a document capable of being forged ; the offence lay in selling spuiious as 
real powders. The wrappers without the powders could have no effect whatever. The 
essence of a forgery is, that the document itself should be made the instrument of fraud.] 



THE CRIMINAL LAW. 393 



' OHArTER XLIII. 

PUNISHMENT OF PARTICULAR FORGERIES, OFFENCES 

RESEMBLING FORGERY, AND ACTS PREPARATORY TO 

THE COMMISSION OF FORGERY. 

■^ AllTICLE 492. 

COUNTERFEITINLI PUBLIC SEALS, AND FORGING STATE 

DOCUMENTS. 

•'' Every one is guilty of felony and liable to imprison- 
ment for life, who 

(ft.) forges or counterfeits, or utters, knowing the 
same to be forged or counterfeited, the Grreat Seal of the 
United Kingdom, or the Great Seal of Canada, or of any 
Province of Canada,' or of any one of Her Majesty's 
colonies or possessions, Her Ma-jesty's Privy Seal, any 
Privy Signet of Her Majesty, Her Majesty's Royal Sign 
Manual, or any of Her M jesty's seals, appointed by the 
twenty-fourth article of ihe union between England and 
Scotland to be kept, used and continued in Scotland, the 
Grreat Seal of Ireland, '^r the Privy Seal of Ireland, or the 
Privy Seal or Seal at Arms of the Governor-General of 
Canada, ' or of the Lieutenant-Governor of any Province 

' The provisions constituting this chnpter could be further condensed, as maybe seen 
by reference to the corresponding chapter in Stephens' Digest. I thought it well, how- 
over, on the whole, to adhere closely to the language of the statute, although that in- 
volved considerable superfluous matter, and the definition of similar oflences in a 
somewhat bewildering variety of terms. The whole statute could, with advantage, bo 
re-drafted . 

-S.D. Art. 359 (a.) 

•'R. S. C. c. 165,8. 4;24&25Viot.o.98,s. 1. 

■* The expression " Province of Can.vda " includes the Into Province of Canada and the 
late Provinces of Upper Canada and i.ower Canada, aluo the Provinces of Nova Scotia, 
New Brunswick, Prince Edward Islaiii and Briti-^h Columbiii, as they respectively 
existed before they became part of Canada and also the several Provinces, Territories 
and Districts now or hereafter forming part 0.'^ Canada ; R. S- C- c. 105, s.l See, also, 
R.S.C.c 1,8.7(13). 

' By the 44th Section of TAe Militia Act, tho Giovernor-General is authorized to r.ffix 
his signature to any commission issued under that Act u> means of a stamp. The forging 
or counterfeiting of any such stamped signature is a felony, punishable in like manner 
as the forgery of his Privy Seal or Seal at Arras. 



394 .4 DIGEST OF 



of Canada, or of any person who administers, or, at any 
time, administered the Government of any Province of 
Canada, or of the Grovernor or Lieutenant-Crovernor of 
any one of Her Majesty's colonies or possessions ; or 

{b.) forges or counterfeits the stamp or impression of 
any of such seals ; or 

(c.) utters any document or instrument whatsoever, 
having thereon or affixed thereto the stamp or impression 
of any such forged or conterfeited seal, knowing the 
same to be the stamp or impression of such forged or 
counterfeited seal, or any forged or counterfeited stamp 
or impression made or apparently intended to resemble 
the stamp or impression of any of such seals, knowing 
the same to be forged or counterfeited ; or 

{d.) forges, or alters, or utters, knowing the same to be 
forged or altered, any document or instrument having 
any of the said stamps or impressions thereon, or affixed 
thereto ; or 

(e.) ' forges or fraudulently alters any document bear- 
ing or purporting to bear the signature of the Governor- 
General of Canada, or ot any deputy of the Governor- 
General, or of the Lieutenant-Governor of any Province 
of Canada, or of any person who administers, or, at any 
time, administered the Government of any Province of 
Canada ; or 

(/.) oiFers, utters, disposes of or puts off any forged or 
fraudulently altered document mentioned in clause (e.), 
knowing the same to be so forged or altered. 

-Article 493. 

forgery and other offences respecting transfers 

of shares in public funds — claims to crown 
^ grants, scrip, etc. 

Every one is guilty of felony and liable to imprison- 

'R.s.c 0.165,8.5. """""^nrrr - 

= S. D. Arts. 35ii (i ),(/.), 361 (ff.). 367. 



THE CRIMINAL LAW. :i95 



mout for life in cases {a ), (b.) and (c), and for seven years 
in cases (d.) and (e.), who, 

(a.) ' with intent to defraud, forges or alters, or offers, 
utters, dispose of or puts off, knowing the same to be 
forged or altered, 

(i.) any transfer of any share or interest of or in any 
stock, annuity or other public fund which now is or 
hereafter may be transferable in any of the books ol the 
Dominion of Canada, or of any Province of Canada, or of 
any bank at which the same is transferable, or of or in 
the capital stock of any body corporate, company or 
society, which now is or hereafter may be established by 
charter, or by, under or by virtue of any Act of Parlia- 
ment of the United Kingdom or of Canada, or by any Act 
of the Legislature of any Province of Canada , or 

(ii.) any power of attorney or other authority to transfer 
any share or interest of or in any such stock, annuity, 
public fund or capital stock, or any claim for a grant of 
land from the crow^n in Canada, or for any scrip or other 
payment or allowance in lieu of any such grant of land, 
or to receive any dividend or money payable in respect of 
any such share or interest ; or 

(6.) ^ with intent to defraud, demands or endeavors to 
have any such share or interest transferred, or to receive 
any dividend or money payable in respect thereof, or any 
such grant of land, or scrip or payment or allowance in 
lieu thereof, by virtue of any such forged or altered power 
of attorney or other authority, knowing the same to be 
forged or altered ; or 

(c.) •* falsely and deceitfully personates any owner of 
any such share or interest or any such claim, scrip, pay- 
ment or allowance, and thereby transfers or endeavors to 
transfer any share or interest belonging to any such 
owner, or thereby receives or endeavors to receive any 

' R. S. C. 0. 165, s. 8 ; 24 A 25 Vict, c 98, s. 2. ■ --f-^": 

- As to demanding other property on forgod instruments, see Art. 512. 
3 R. S. C. c. 165, s. 9 ; 24 & 25 Vict. c. 98, s. 3. 



39G A DIGEST OF 



money due to any such owner, or to obtain any such grant 
of land, or such scrip or allowance in lieu thereof as 
aforesaid, as if such oifender wt're the true and lawful 
owner ; or 

(d.) ' forges any name, handwriting or signature pur- 
porting to be the name, handwriting or signature of a 
witness attesting the execution of any power of attorney 
or other authority to transfer any share or interest of or in 
any such stock, annuity, public fund or capital stock, or 
grant of land or scrip or allowance in lieu thereof, or to 
receive any dividend or money payable in respect of any 
such share or interest ; or 

(e.) offers, utters, disposes of or puts off any such power 
of attorney or other authority, with any such forged name, 
handwriting or signature thereon, knowing the same to 
be forged. 

Article 494. 

making false entries in books of public funds. 

- Every one is guilty of felony and liable to imprison- , 
ment for life, who, with intent to defraud does any of the 
following things in respect of any of the books of account 
kept by the Government of Canada, or of any Province of 
Canada, or of any bank at which any of the books of 
account of the Go\rernment of Canada or of any Province 
of Canada are kept, wherein are entered or kept the 
accounts of the owners of any stock, annuities or other 
public funds, which now are or hereafter may be trans- 
ferable in such books, that is to say : — 

(a.) wilfully makes any false entry therein ; , . 

(b.) wilfully alters any word or figure therein ; 

(c.) in any manner wilfully falsifies any of the accounts 
of any of such owners in any of such books ; or 

{d.) wilfully makes any transfer of any share or interest 
of or in any such stock, annuity or other public fund in 

' R. S. C c. 165, s. 10 ; 24 & 25 Vict. c. 98, ?. 4. - —- 
2 R. S. C. c. 165, 9. 11 ; 24 & 25 Vict. c. 98, s. 5. 



THE CRIMINAL LAW. 3'J7 



the name of auy person who is not the true and lawl'ul 
owner thereof. 

' Article 495. 

making false dividend warrants. 

-Every clerk, officer or servant of, or person employed 
or entrusted by, the Government of Canada, or of any 
Province of Canada, or by ony bank in which any of 
siich books and accounts as are mentioned in the Arti- 
cle next preceding is kept, is guilty of felony and liable 
to seveD years' imprisonment, who, knowingly and with 
intent to defraud, makes out or delivers any dividend 
warrant, or warrant for payment of any annuity, inter- 
est or money payable as aforesaid, for a greater or less 
amount than the person on whose behalf such warrant 
is made out is entitled to. 

•'Article 496. 

forgery of entries in registers of birth, baptisms, 

marriages, deaths, burials and other 

offences respecting such 

registers. 

' Every one is guilty of felony and liable to imprison- 
ment for life who does any of the following things in 
respect of any register of births, ■' baptisms, marriages, 
deaths or burials, authorized or required to be kept in 
Canada, or in any Province of Canada, that is to say : 

(a.) forges or fraudulently alters in any such register 
any entry relating to any birth, baptism, marriage, death 
or burial, or any part of any such register, or any certified 
copy of such register, or of any part thereof ; or 

1 S. D. Art. 361 W.) _ :. ..- - 

-- - «R.S. C.c. 165, 8. 12; 24 & 25 Vict. 0.98,8.6. 

8S. D. Art.359W.) 
_. _ _ _^ _, « B, S. C. 0. 165, g. 43 ; 24 & 25 Vict. c. 98, 8. 36. ""': "' " ' 

I" As to other registers, see Art. 503. 



3!)8 A DIGEST OF 



(b.) knowingly and unlawl'ully inserts, or causes or 
permits to be inserted, in any such register, or in any 
certified copy thereof, any false entr / of any matter re- 
lating to any birth, baptism, marriage, death or burial ; or 

(c.) knowingly and unlawfully gives any false certifi- 
cate relating to any birth, baptism, marriage, death or 
burial, or certifies any writing to be a copy or extract 
from any such legister, knowing such writing, or the 
part of such register whereof such copy or extrac .3 so 
given, to be false in any material particular; or 

(d.) forges or counterfeits the seal of or belonging to 
any registry office or burial board ; or 

(e.) offers, utters, disposes of or puts off any such regis- 
ter, entry, certified copy, certificate or seal, knowing the 
same to be false, forged or altered, or any copy of any 
entry in any such register, knowing such entry to be 
false, forged or altered ; or 

(/.) unlawfully destroys, defaces or injures, or causes 
or permits to be destroyed, defaced or injured, any such 
register, or any part of any such register, or any certified 
copy of any such register, or of any part thereof 



"Article 49*7. 

forgery and other offences respecting copies of 

registers. 

' Every one is guilty of felony and liable to imprison- 
ment for life who does any of the following things in 
respect of any copy of any register directed or required 
by law to be transmitted to any registrar or other officer, 
that is to say : 

(a.) knowingly and wilfully inserts, or causes or per- 

- In the statute, instead of " of," the word "or" occurs. There is the same clerical 
error in 32 and 33 Vict. (D), c. 19 s. 42. from which R. S.C. o. 165, s. 43 is taken. The 
word " of " is used in the English Act. -. - , .-• 

S. D. Art. 359 (e.) ' j __ : - ' • 

R. S. C. c. 166, 8. 44 ; 24 & 25 Viot. c. 98, s. 37. """' — — — — - 



THE CRIMTNAL LAW. 309 

mils to bo iiisorti'd thoreiii, nny I'also entry ol' any matter 
relating to any ' baptism, marriao-e or burial ; or 

(b.) ibrires or alters, or oilers, utters, disposes of or puts 
oir, knowing' the same to be fors^ed or altered, any copy 
of any such reiiister ; or 

{().) knowingly or wilfully signs or verifies any copy 
of any such register, such copy ])('ing false in any part 
thereof, knowing the same to be false ; or 

{(l.) unlawfully destroys, defaces or injures, or for any 
fraudulent purpose, takes from its place of deposit, or 
conceals, any such copy of any register. 



- Article 498. 

follgery of debentures. — government and bank 

bills and notes, etc. — deeds, bonds, etc. — 

wills — bills of exchange — orders, 

receipts. 

Every one is guilty of felony and liable to imprison- 
ment for life who, with intent to defraud, forges or 
alters, or offers, utters, disposes of or puts off, knowing 
the same to be forged or altered, 

(a.) ^ any debenture or other security, issued under the 
authority of any Act of the Parliament of Canada, or of 
the Legislature of any Province of Canada, or any ex- 
chequer bill or exchequer bond, or any Dominion or 
Provincial note, or any endorsement on or assignment of 
any such debenture, exchequer bill or exchequer bond 

' The word birth seems to be wanted here. 

-S.D. Art. 359(6). 

=* R. S. C. c. 165, s. 13 ; 24 & 25 Vict. o. 98, s. 8. 

Every oflSeer charged with the receipt or disbursement of public moneys, every officer 
of any bank doing business in Canada, and every person acting as or employed by any 
banker, shall stamp or write in plain letters the word " Counterfeit," " Altered " or 
" Worthless " upon every counterfeit or fraudulent note issued in the form of a Do- 
minion or bank note, and intended to circulate as money, which is presented to him at 
his place of business ; and if such officer or person wrongfully stamps any genuine note- 
■ he shall, upon presentation, redeem it at the face value thereof ; 50-51 Vict. o. 47 s. 1. 



400 A DICIEST OF 

or othor .st'curity is.sucd luulcr such authority, or any 
coupon, ro(ioipt or certificate I'or interest accruinj^ there- 
on, or any scrip in limi of land ; or 

(6.) ' any note or bill of exchange of any body cor- 
porate, company or person carrying on the business of 
bankers, commonly called a bank note, a bank bill of 
exchange or bank post bill, or any endorsement on or 
assignment of any bank note, bank bill o<' exi'hange or 
bank post bill ; or 

(c.) " any deed or any bond or writing obligatory, or 
any assignment at law or in equity of any such bond or 
writing obligatory, or any name, haiul writing o\ signa- 
ture purporting to be th(! name, handwriting or signa- 
ture of a witness attesting the execution of any deed, 
bond or writing obligatory ; or , 

{(l.) ' any will, testament, codicil, or testamentary 
instrument ; or 

(e.) ' any bill of exchange, or any acceptance, endorse- 
ment or assignment of any bill of exchange, or any pro- 
missory note f r the payment of money, or any endorse- 
ment on or assignment of any such promissory note : or 

(/.) ' any undertaking, warrant, order, authority or 

' R. S. C. c. 165, s. 18 ; 24 k 25 Viet. c. 08, s. 12. 

- R. S. C. c. Ifio, 8. 26 ; 2 J .t 25 Vict. c. US, s. 20. It is not material thftt any dooument 
described in clauses (c), (r/), ('■) and (/) is in any Act designiited by some other special 
name or description (R. S. C. c. 165, p. 47) ; nor in what place the money thereby payable, 
or scoured is or purports to bo payable, nor in what language the same or any part thereof 
is expressed, nor whether the same is or is not under seal ; (.«. -19) ; nor in what place any 
writing or matter the forgintr, .tc, of which is an ofiFonce under R. S. C. c. 165 purports to 
be made, or has been made, nor in what language the same or any part thereof is ex- 
pressed ; (s. 48). 

' R. S. C. 0. 165, s. 27 ; 21 k. 25 Vict. o. 98, s. 21, 

< R. S. C. c. 165, 8. 28 ; 24 & 25 Vict. c. 98, s. 22. 

[A agrees to pay B for goods by his, A's, acceptance, and that he. A, will accept it, and 
procure its end )rsement by C. B sends a form for aoocptance accordingly, but with no 
drawer's name. A accepts it and forges C's endorsement to it. He cannot be indicted 
under this section, but probably might be convicted of a common law forgery : R. v. 
Hatter, L. R. 7 Q. B. D. 78.] See R. v. McFee, 13 0. R. 8. A forged paper purporting 
to be a bank note may be a promissory note ; R. v. McDonald, 12 U. C. Q. B. 5i3. 

6 R S. C. 0. 165. 8. 29 ; 24 & 25 Viot. o. 98, s. 23. 

[As to what is not a receipt, see R. v. French, L. R. 1 C. C. R. 217. An I. 0. D may be 
an undertaking for payment of money ; R. v. Chambers, L. R. 1 C. C. R. 311. A turn- 



THE ClilMlNAL LAW, 401 

request lor the payment of luoin^y or for the delivery or 
transfer of any jroods or chattels, or of any note, bill or 
oth(a' security for the paynnuit of money, or for procuring 
or giving credit, or any endorsement on or assignnuiiit of 
any such undertaking-, warrant, order, authority or re- 
([uest, or any ac<!0untable re(;eipt, ac(|uittan(^e or receipt 
lor money or for goods, or for any not(% bill or other 
security for tln^ payment of money, or any endorsement 
on or assignment of any such accountable receipt, or any 
acc(mnt, book or thing, written or printed or otherwise 
made capable of being read. 

Article 490. 

STAMPS. 

' Every one is guilty of felony and liable to twenty- 
om» years' imprisonment who 

[a.) forges, (counterfeits or imitates, or procures to be 
forged, counterfeited or imitated any stamp or stamped 
paper, issued or authorized to be used by any Act of the 



[piko ticket is ii receipt ; l{. v. Filch, L. k C. 159. A bank pass book is an accountable re- 
ceipt ; Ii. V. Smith, L. k C. 168 ; It. v. Mnodn, L. \, C. 173. A KUiirantoe against negligence 
and dishonesty is an " mulcrtakin); lor the payment of money ;" R.\. Jnnce, L. it C. 570.] 
A pawnbroker's ticket is a warrant for the delivery of goods ; ]t. v. Morrixon.i'BeW, C. C. 
1E8.] A statement of account, such as a bank receives from other banks having business 
connection with it, and containing nn acknowledgment ot the receipt of money to be 
iicoounted foris an accountable receipt ; K-c vni-te IhDnun, 4 iM. L. II 145. Kx paiic 
SUmhro, 2 Man. L. R. 1, is an instance of the forgery of a receipt. An order not addressed 
to any one may be an order for the payment of money, It it appears for whom it was 
intended ; 1{. v. Pnrker, 15 IJ. C. C. P. 15. A forges B's name on the back of a check 
payable to B's order, A does not forge an order for the payment of money ; by Fournier, 
Henry, and Taschcreau, JJ. (Ritohiei C. J., and Strong, J., dissenting), in Cunningham v. 
R., Casaels's Digest, 107, reversing R.y. Cimnimihum, 6 R. & Q. 31. Jt.y. Tukc,nV. C. 
Q. B. 296 and 7?. v. Sled 13 U. C. C. P. 619 atford illustrations of orders for the payment 
of money ; and Ji. v. lieopelle, 20 U. C Q. B. 260 of a mere request. 

' R. S. C. c. 1G5, 8. 17 ; 33 & 34 Vict. c. 98, s. 18. 

As to similar offences in respect of Canadian, British, Colonial or Foreign postage 
stamps, and forging, counterfeiting, or unlawfully using franks, &o. , see R. S. C. c. 35, 
8. 86, under which the offender is liable to imprisonment for life, or for any term not 
less than five years. See also R. S. C. c. 101 , s. 45 as to forging, Ac, certificate purporting 
to be issued under The Gas Inspection Act, or any stamp to be affixed thereto. 

2d 



402 A Did i: ST or 



rarliiiuii'iit of Canada, or ol" thr Lcj^islaturo of any Pro- 
vinco of Canada, by means vvluMcof any duly tlicrcby 
inipoH»'d may he paid, or any i)art or portion of any MUch 
stamp ; or 

{h.) knowinj^ly hhos, ofTurs, stdls or cxpoHCH for sal*' any 
su(^h fori^i'd, counterioitod or iniitatod stamp ; or 

(f.) onj:?ravos, cuts, sinks or makes any plate, dio or 
other thinji whereby to maki; or imilaic! such stamp or 
any part or portion thereof, except by permission of an 
olUccr or pi^rson who, being duly authorized in that be- 
half by the Government of Canada or of any Province of 
Canada, may lawfully grant such permission ; or 

{d.) has possession of any such plate, die or thing, 
without such pc^rmissiou, or, without such permission, 
uses or has possession of any such plate, die or thing law- 
fully engraved, cut or made ; or 

(e.) tears off or removes from any instrument, on which 
a duty is payable, any stamp by which such duty has 
been wholly or in part paid, or removes from any such 
stamp any writing or mark indicating that it has been 
used for or towards the payment of any such duty. 



' Article 500. 

debentures issued under any lawful authority. 

- Every one is guilty of felony, and liable to fourteen 
years' iinprisonraent, who forges or fraudulently alters, 
or offers, utters, disposes of or puts off, knowing the same 
to be forged or fraudulently altered, any debenture issued 
under any lawful authority whatsoever, either within 
Her Majesty's dominions or elsewhere. 

1 S. D. Art. 360 (a.) ' ^ ♦ 

2 R. S. C. 0. 105, 8. 32 ; 24 & 25 Vict. c. 98, s. 26. The ofifender is liable to iraprisonmont 
for life if the debenture is issued under tiie authority of an Aotof the Parliament of 
Canada or of the Legislature of any Province of Canada ; Art. 498 (a.) 



THE CniMINAL LAW. lOli 



I'OUOKRV OF FOIIKION niLLS, AND OTIIKR OFFENORH 
UESPKOTINCI Till-: SAME. 

- Every one is j?uilty of felony, and lia})l(^ to fourteen 
years' imprisonuuMit, who 

(a.) fovjCS-cH or alttTs, or ottrrs, utters, disposes of or puts 
off, knowinu," the same to he f(>r<:;ed or aitt^red, any hill of 
oxchaiiii'e, promissory note, undertakin<r or order for pay- 
ment of money, in whatsoever languaue th(^ same is ex- 
prt'ssed, and whether the same is or is not under seal' 
purporting- to he the bill, note, undertakini>- or order of 
any foreij^n prince or state, or of any minister or oIHeer 
in the service of any for.eian prince or state, or of any 
body corporate or body of the like nature, constituted or 
recognized by any fonui»-n prince or state, or of any per- 
son or company of persons resident in any country not 
under the dominion of Tier Majesty ; or 

{b.) ' without lawful authority or excuse, the proof 
whereof shall lie on him, engraves, or in anywise makes 
upon any phite whatsoever, or upon any wood, stone or 
other material, any such doiiumeut or any part 
thereof ; or 

(c.) uses or knowingly has in his custody or possession 
any plate, stone, wood or other material, upon which 
any such foreign bill, note, undertaking or order, or any 
pa: . thereof is engraved or made ; or 

{(l.) knowingly offers, utters, disposes of or puts ofT, or 
has in his custody or possession any paper upon w^hich 
any part of any such foreign bill, note, undertaking or 
order is made or printed. 

' ?. D. Art. 362 (/.) 

■' R. S. C. c. 165, s. 25 ; 24 & 25 Viot. e. 98. s. 19. 

''Ill the clause of the Act that is represented by (6.) the words are " whether the same 
is or is not, or is or is not intended to bo, under seal." 

* [Taking a positive impression of an Austrian note on glass by photography is a 
" malting " within this section ; K. v. lltnaldi, L. & C. 330.] 

2 D 2 



404 A DIGEST OF 



' AllTICLE 502. 

FORGERY OF NOTARIAL INSTRUMENTS AND DOCUME.TTS 
RELATING TO THE REGISTRATION OF TITLE, ETC. 

-Every one is c^uilty of felony and liable to fourteen 
years' iinprisoument, who 

(a.) forges or fraudulently alters, or offers, .uters, dis- 
poses of or puts off, knowing the same to be forged or 
fraudulently altered, 

(i.) any notarial act or instrument or copy, purporting 
to be an authenticated copy thereof or anj proces verbal of 
a surveyor, or like copy thereof ; or 

(ii.) any duplicate of any instrument, or any memorial, 
affidavit, affirmation, entry, certificate, endorsement, docu- 
ment or writing, made or issued under the provisions of 
any Act of the Parliament of Canada, or of the Legisla- 
ture of any Province of Canada, for or relating to the 
registry of deeds or other instruments or doc^^ments re- 
specting or concerning the title to or claims upon any 
real or personal property whatsoever, or forges or coun- 
terfeits the seal of or belonging to any office for the 
registry of deeds or other instruments as aforesaid, or any 
Stamp or impression of any such seal ; or 

(6.) forges any name, handwriting or signature, pur- 
porting to be the name, handwriting or signature of any 
person to any such memorial, affidavit, affirmation, entry, 
certificate, endorsement, document or writing required or 
directed to be signed by or by virtue of any such Act ; or 

(c.) offers, utterb, disposes of or puts off any such mem- 
orial or other writing, having thereon any such forged 
stamp or impression of any such seal, or any such forged 
name, handwriting or signature, knowing the same to be 
forged. 

1 S. D. Art. 3(50 (6.) — ^.-:.-^:,.__.._:^ ---:—:_..__ J 

8 R. S. C. c. 166, 8. 38 ; 24 & 25 Viot. c. 98, 8. 31. \^ ' ; ^i! 



THE CRIMINAL LAW. 405 



Article 503. 



FORGERY OF PUBLIC RIGISTERS OR BOOKS — FALSE COPIES 

THEREOF. 

- Every one is guilty of felony, and liable to fourteen 
years' imprisonment, who forges or lounterfeits or alters 
any public register or book appointed by law to be made 
or kept or any entry therein, or wilfully certifies or utters 
any writing as and for a true copy of such public register 
or book or of any entry therein, knowing such writing to 
be counterfeited. 

^Article 604. 
forgery of certain .judicial documents. 

Every one is guilty of felony, and liable to fourteen 
years' imprisonment in case («.) and to three years' im- 
prisonment in case (6.), who, with intent to defraud, 
forges or alters, or offers, utters, disposes of or puts off, 
knowing the same to be forged or altered, 

(a.) ' any certificate, report, entry, endorsement, declar- 
ation of trust, note, direction, authority, instrument or 
writing made or purporting or appearing to be made by 
any judge, commissioner, clerk or other officer of any 
court in Canada, or the name, handwriting or signature 
of any such judge, commissioner, clerk or other officer; or 

(6.) ' any summons, conviction, order or warrant, of 
any justice of the peace, or any recognizance purporting 
to have been entered into before any justice of the peace 
or other officer authorized to take the same, or any 
examination, deposition, affidavit, affirmation or solemn 
dec. ration, taken or made before any justice of the peace. 

' S. 1). Arts. 360 (c), 361(r/.) 

- K. S. C. e. 8.7. As to register of births, ifec, see Art. 496. _ 

■' R. S. C. c. io5, s. 40 ; 24 & 2.5 Vict. c. 98, s. 33. -— - • -^ 

< R. S. U. c. 165, ». 39 ; 24 & 25 Vict. 98, a. 32. 



406 A DIGEST OF 



' Article 505. 

foraery of other judicial documents and instru- 
ments admissible in evidence in courts 
of justice. 

Every one is guilty of felony and liable to seven 
years' imprisonment who 

(a.) - forges the seal of any court of record ; or 

{b.) forges or fraudulently alters or offers, utters, dis- 
poses of or puts off, knowing the same to be forged or 
fraudulently altered, 

(i.) '* any record, writ, return, panel, process, rule, 
order, warrant, interrogatory, deposition, affidavit, affirm- 
ation, recognizance, cognovit actionem, warrant of attorney, 
bill, petition, process, notice, rule, answer, pleading, 
interrogatory, report, order or decree, or any original 
document whatsoever of or belonging to any court of 
justice, or any document or writing, or any copy of any 
document or writing, used or intended to be used as evi- 
dence in any such court ; or 

(ii.) ' any copy or certificate of any such record ; or 

(iii.) ' any instrument, whether written or printed, or 
partly writcen and partly printed, which is made evi- 
dence by any Act of the Parliament of Canada or of the 
Legislature of any Province of Canada, and not otherwise 
specially mentioned in this chapter ; or 

(f.) " offers, utters, disposes of or puts off any copy or 
certificate of any record having thereon any false or 

> S. D. Art. 301. 

= R. S. C. 0. 165, s, 35 ; 24 k 25 Vict. c. 98 s. 28. The statute is silent as to forging tlio 
impression of sucli seals. 

8 R. S. C. c. 165, s. 34 ; 24 Jk 25 Vict. c. 98, s. 27. 

[These sections are singularly cunibrous and ill-arranged, besides being intolerably 
wordy. A somewhat s- mi lar provision as to County Courts occurs in 9 <fe 10 Vict. o.95) s. 57; 
see n. V. Richmond, Bell, 142, and R. v. Evans, D. & B. 236.] 

< R. S. C. c. 165, s. 35 ; 24 & 25 Vict. c. 98, s. 28. .--^-._. 

" R. S. C. c. 165, s. 36 i 24 A: 25 Vict. c. 9S, s. 29. • . " 

« R. S. C. c. 165, 8. 85 ; 2t & 25 Vict. c. 98, s. 28. 



THE CRIMINAL LA W. 40*7 

forged name, haudwritiiig; or signature, knowing the 
same to be false or forged ; or 

{(1.) forges or fraudulently alters any process of any 
court whatsoever ; or 

serves or enforces any forged process of any court what- 
soever, knowing the same to be forged ; or 

delivers or causes to be didivered to any person any 
paper, falsely purporting to be any such process or a copy 
thereof, or to be any judgment, decree or order of any 
court whatsoever, or a copy thereof, knowing the same to 
be false ; or 

acts or professes to act under any such false process, 
knowing the same to be false; or 

(e.) being the clerk of any court or other officer having 
the custody of the records of any court, or being the 
deputy of any such clerk or officer, utters any false copy 
or certificate of any record, knowing the same to be 
false ; or 

(/.) not being such clerk, officer or deputy, signs or 
certifies any copy or certificate of any record as such 
clerk, officer or deputy ; or 

(g.) ' prints any proclamation, order, regulation or 
appointment, or notice thereof, and causes the same falsely 
to purport to have been printed by the Queen's Printer 
for Canada, or the Grovernment Printer for any Province 
of Canada, as the case may be, or tenders in evidence any 
copy of any proclamation, order, regulation or appoint- 
ment, which falsely purports to have been printed as 
aforesaid, knowing that the same was not so printed; or 

{h) forges, or tenders in evidence, knowing the same to 
be forged, any certificate author i to be made or given 
by any Act of the Parliament of Canada, or of the Legis- 
lature of any Province of Canada, for the purpose of cer- 
tifying or verifying any copy or extract of any proclama- 
tion, order, regulation, appointment, paper, document or 

' K. S. C. c. 165. 8. 37 ; 31 & 32 Viot. c. 37, a. 4. 



408 A DIGEST OF 



writing, of which a certified copy may lawfiilly be offered 
as primd fade evidence. 

' Article 506. 

acknowledging recognizances without authority. 

^ Every one is guilty of felony, and liable to seven 
years' imprisonment, who, without lawful authority or 
excuse, the proof whereof shall lie on him, in the name 
of any other person, acknowledges any recognizance of 
bail, or any cognovit actionem, or judgment, or any deed 
or other instrument, before any court, judge, notary or 
other person lawfully authorized in that behalf. 

Article 50t. 

FORGERY OF LETTERS PATENT. 

•^ Every one is guilty of felony, and liable to seven 
years' imprisonment, who forges or alters, or in aiiy way 
publishes, puts off, or utters as true, knowing the same 
to be forged or altered, any copy of letters patent, or of 
the enrolment or enregistration of letters patent, or of any 
certificate thereof, made or given or purporting to be 
made or given by virtue of any Act of Canada, or of any 
Province of Canada. 

^ Article 508. 

forgery of marriage licenses. 

'' Every one is guilty of feloiiy, and liable to seven 
years' imprisonment, who forges or fraudulently alters 
any license or certificate for marriage, or offers, utters, 

• S. D. Art. 368. .^ 

= R. S. C. c. 165, s. 41 ; 24 A 25 Vict. o. 98, f. 34. ' "' ' ." '" '"]-■ ---^fn^-r;''--^--^' 

^ R. s. c. c. 1G5, p. 6. ■';•■* .■-'■:-:'..> . '> 

* S. D. Art. 361 ((7.) 

« R. S. C. e. 165, s. 42 ; 24 & 25 Vict. o. 98, ?. 35. 



THE CRIMINAL LAW. 409 



disposes of or puts ofi' any such a license or certificate, 
knowing- the same to be forged or franduk^ntly altered. 

Article 509. 

forgery of passenger tickets. 

' Every one is guilty of felony, and liable to three 
years' imprisonment, who, with intent to defraud, forges, 
offers or utters, disi)0ses of or puts off, knowing the 
same to be forged, any ticket or order for a free or paid 
passage on any railway or any steam or other vessel. 

^ Article 510. 

OFFENCES respecting CROSSED CHEQUES. 

•' Every one is guilty of felony, and liable to imprison- 
ment for life, who 

(a.) obliterates, adds to, or alters the crossing on any 
cheque or draft crossed with the liame of a banker or 
with two tranverse lines with the words " and companv," 
or any abbreviation thereof ; or 

[b.) otters, utters, disposes of or puts off any cheque or 
draft whereon any such obliteration, addition or altera- 
tion has been made, knowing the same to have been 
made. 

^Article 511. 

drawing bills, ETC., WITHOUT AUTHORITY. 

•' Every is guilty of felony, and liable to fourteen years' 
imprisonment, who, with intent to defraud, 

(a.) without lawful authority or excuse, draws, makes, 
signs, accepts or endorses any bill of exchange or promis- 

' R. s. c. c. 165, s. S3. ■• ;; .; v.; ■■■;__,v_._..,^_:^:a_,,-l.';„:,:w ::-..;.- -i--- -■ 

2S. D. Art.359(c.) 

■' R. S. C. c. 165, s. 31 ; 2t & 25 Vict. 0. 98, 8. 25. ' . _L 

* S. D. Art. 300 (rf.) "~~'~f^''"~, T^ 

=* R. S. C. c. 165, s. 30 ; 24 & 25 Vict. c. 98, s. 24. 



410 .1 Did EST OF 



sory note, or any undertaking, warrant, order, authority 
or request for the payment of money, or for the delivery 
or transfer of goods or chattels, or of any bill, note or 
other security for money, by procuration or otherwise, 
for, in the name, or on the account of any other person ; 
or 

(6.) offers, utters, disposes of or puts off" any such bill, 
note, undertaking, warrant, order, authority or request, so 
drawn, made, signed, accepted or endorsed, by procuration 
or otherwise, without lawful authority or excuse, know- 
ing the same to have been so drawn, made, signed, 
accepted or endorsed. 



' Article 512. 

demanding property upon forged in.strument8. 

- Every one is guilty of felony, and liable to fourteen 
years' imprisonment, who, with intent to defraud, de- 
mands, receives or obtains, or causes or procures to be 
delivered or paid to any person, or endeavors to receive or 
obtain, or to cause or procure to be delivered or paid to 
any person, any chattel, money, security for money, or 
other property whatsoever, under, upon or by virtue of 
any forged or altered instrument whatsoever, knowing 
the same to be forged or altered, or Uiider, upon or by 
virtue of any probate or letters of administration, know- 
ing the will, testament, codicil, or testamentary writing 
on which such probate or letters of administration were 
obtained to have been forged or altered, or knowing 
such probate or letters of administration to have been 
obtained by any false oath, affirmation or affidavit. , 



IS. D. Art. 360 (e.) ■ . • . 

- R. S. C. c. 165, s. 45 ; 24 & 25 Vict. c. 98. s. 38. As to demanding transfer of shares in 
public funds on forged power of attorney, see Art. 493 (6.) 



THE CJUMIAAL LAW. 411 



' AllTICLE 618. 

UNLAWFUL POSSESSION OF FORGED BANK NOTES— DC'tM- 

INION, PROVINCLVL OR BANK NOTE PAPER— 

INSTRU.MENTS FOR MAKING 

SUCH PAPER. 

Every one is guilty of felony, and liable to Iburteen 
years' imprisonmont, who, without lawful authority or 
excuse, th(? proof whereof shall lie on him, 

{a.) ' purchases or receives from any other person, or 
has in his ciiistody or possession any forged bank notes, 
bank bill of exchange or bank post bill, or blank bank 
note, blank bank bill of exchange or blank bank post bill, 
knowing the same to be forged ; or 

{b.) ■' makes, uses, sells, exposes for sale, utters or dis- 
poses of, or knowingly has in his custody or possession 
any Dominion, provincial or bank note paper as defined 
in the note hereto ; or 

{r.) makes or uses, or knowingly has in his custody or 
possession, any frame, mould or instrument for making 
any such paper ; or 

{(l.) by any contrivance causes 

(i.) any words used in any dominion, provincial or 
bank note, or any part of such words intended to 
resemble and pass for the same, or any device or dis- 
tinction peculiar to and appearing in the substance of 

iS.D.Art.2()2. 

- H. S. C. c. 165. s. 19 ; 24 A 25 Vict, c 98, s. 13. 

» K. S. C. c. 165, ss. 20, 24 ; 2-t & 25 Vict. c. 98, S8. 14, 18. 

Dominion, provincial or bank note paper moans any paper used for dominion or pro- 
vincial notes, or for bank notes, with any words used in such notes, or luiy part of such 
words intended to resemble or pass for the same, visible in the substance of the i)aper,or 
with curved or waving bar lines, or with the layinn wire lines thereof in a waving or 
curved shape, or with any number, sum or amount, expressed in a word or words in 
letters, visible in the substance of the paper, or with any device or distinction peculiar to 
and appearing in the substance of 'he paper u?eil for such notes, respectively ; (s. 20) ; and 
the expression "bank note paper" also includes paper, with the name or firm of any 
bank or body corporate, company or person carrying on the business of bankers, appear- 
ing visible in the substance of the paper ; (s. 24). 



412 A DfGEST OF 



th(> paper used for any such notofs, rcspoctivtily, to appear 
visible iu the substance oi'any paper ; or 

(ii.) the numeritsal sum or amount of any such note, in 
a word or words in letters, to appear visible in the sub- 
stance of the paper whereon the same is written or 
printed ; or 

(iii.) the name or firm of any such bank, body corporate, 
company or person to appear visible in the substance of 
the paper upon which the same is written or printed ; or 

(e.) ' engraves or in anywise makes upon any plate what- 
soever, or upon any wood, stone or other material, any 
promissory note or part of a promissory note, purporting 
to be a dominion or provincial note or bank note, or to 
be a blank dominion or provincial note, or bank note, or 
to be a part of any dominion or provincial note, or bank 
note, or any name, word or character resembling*, or 
apparently intended to resemble, any subcription to any 
such dominion or provincial note, or bank note ; or 

uses any such plate, wood, stone or other material, or 
any other instrument or device for the making or print- 
ing of any such note, or part of such note ; or 

knowingly has in his custody or possession any such 
plate, wood, stone or other material; or any such instru- 
ment or device ; or 

knowingly offers, utters, disposes of or puts off, or has 
in his custody or possession any paper upon which any 
blank dominion or provincial note, or bank note, or part 
of any such note, or any name, word or character re- 
sembling, or apparently intended to resemble, any such 
subscription is made or printed ; or 

(/.) - engraves or in anywise makes upon any plate 
whatsoever, or upon any wood, stone or other material, 
any word, number, figure, device, character or ornament, 
■;he impression taken from which resembles, or is 



1 R . S. C. c. 165, s. 22 ; 24 A- 25 Vict. c. 98. s. 16. 
- K. S. C. c. 105, 8. 23 ; 24 & 25 Vict. c. 98, s. 17. 



THE ClilMINAL LAW. 413 

appiULMitly intondod to rosomhlo any part ol' a domiuiou 
or provincial note, or bank not(« ; or 

uses or knowini^ly has in his (custody or possession any 
such plate, wood, stone or other material, or any othfr 
instrument or dovi«H' for the impressing or makinjj; upon 
any paper or any other mat»>rial, any word, number, 
iiuure, (character or ornament, which resembles or is 
apparently intended to resemble any part of any such 
note ; or 

knowingly otters, utters, disposes of or puts off, or has 
in his custody or possession any paper or other material 
upon which there is an impression of any such matter as 
aforesaid. 

' It is not an offence to issue any bill of exchange or 
l)romissory note, having the amount thereof expressed in 
a numerical figure or figures denoting the amount thereof 
in pounds or dollars, appearing visible in the substance 
of the paper upon which the same is written or printed, 
or to make, use, or sell any paper having waving or 
curved lines, or any other devices in the nature of water 
marks visible in the substance of the paper, not being 
bar lines or laying wire lines, provided the same are not 
so contrived as to form the groundwork or texture of the 
paper, or to resemble the waving or curved, laying wire 
lines or bar lines, or the water-marks of the paper used 
for dominion, provincial or bank notes. 

^ Article 514. 

unlawful possession, etc., of paper prepared for 
debentures and other securities — plates, 

DIES, ETC. 

Every one is guilty of felony and liable to seven years' 
imprisonment in cases {a.), {b) and (c), and to imprison- 

' R. S. C. c. 165, 8. 21 ; 24 & 25 Vict. c. 98, s. 15. .;; 

= S. D Art. 363. '- " 



414 A n in EST OF 



iiu'iit for any term Icsh than two yoarH in case (ri.), who, 
without hiwiul authority or cxcuh*', tho prooi' whi^rcof 
nIuiII lit^ on hiiii, 

in.) maki's or cauHos or procun'H to be nuidc, or iiidH or 
assiHtH in nuikinj"-, or knowin«:;ly haw in his custody or 
poNsoHsion 

(i ) ' any papor in thu BubHtance of which appear any 
words, h'ttcrs, li^uri's, nuirks, lines, throads or other 
devices peculiar to and appearing" in the substance ot' any 
paper provided or to be provided or used lor dt^bentures, 
exchequer bills or exchequer bonds, dominion or pro- 
vinidal " notes or other securities issued under the 
authority ol' any Act of the Parliament of Canada, or of 
the Legislature of any Province of Canada, or any part of 
sucih words, letters, ligures, marks, lines, threads or other 
devices, and intended to imitate the same ; or 

(ii.) 'any Ir.ime, mould or instrument, having therein 
any words, letters, figures, marks, lines or devices, 
peculiar to or appearing in the substance of any paper 
provided or to be provided and used for any such 
debentures, exchequer bills or exchequer bonds, notes or 
other securities ; or 

(iii.) any machinery for working any threads into the 
substance of any such paper, or any such thread, and in- 
tend(^d to imitate such words, letters, figures, marks, 
lines, threads or devices , or 

(iv.) any plate peculiarly employed for printing such 
debentures, exchequer bills or exchequer bonds or such 
notes or other securities ; or 

(v.) any die or seal peculiarly used for preparing any 
such plate, or for sealing such debentures, exchequer 
bills or exchequer bonds, notes or other securities ; or 

' ]l. S. C. c. 165, fi. 15 ; 24 & 25 Vict. c. 98, e. 10. 

- But see the Article next preceding and the sections of the Act on which the same is 
founded, by the provisions of which the sumo and like olTences as defined in the text in 
respect of Dominion and Provincial note paper are punishable by imprisonment for 
fourteen years. . 

•' R. S. C. 0. 165, 8. 14 ; 24 & 25 Vict. o. 98, i?. 9. 



THE rniMrxM law. ns 



(vi.) aiiy plato, die or Hfiil, intoiulcd to iinitatc any 
Hiuh plat ', die orm'al ; or 

(b.) ' c-iniNcs or lussifstH in eiivisiui; any such words, 
l«'tlt'rN, lif,'iires, marks, lines, threads or devi<'«'s, or any 
))art of HUcli woi'ds, l»'tti*rs, n«jurcN, marks, lines, thn'ads 
and other <levites, iind intended to imitate the saiiu', to 
ai)pear in the suhstanee ol'any paper vvhatsouvor; or 

(r ) takes or assists in tiikiny an impression ot any such 
plate, die or seiil ; or 

{(I.) '■' purchases or receives, or knowingly has in his 
<ustody or possessioK 

(i.) any paper manufactured and provided hy or under 
the direction ol' the Government of Canada or of anv 
Province of Canada, for the purpose of being' used as 8U»'h 
debenturoji, exchequer hills or exchecjuer bonds, notes or 
other securities, before such paper has been duly stamped, 
signed and issued for pul)lic use ; or 

(ii.) any such plate, die or seal. 



Article 615. 

PRINTIN(V CIlinULAIlS, ETC., IN LIKENESS OF NOTES. 

' livery one who designs, engraves, prints or in any 
manner makis, executes, utters, issues, distributes, circu- 
lates or useti any business or professional card, notice, 
placard, circular, hand-bill or advertisement iu the like- 
ness or similitude of any Dominion or bank note, or any 
obligation or security of any Government or any bank, is 
liable, on summary conviction before two justices of the 
peace, to a fine of one hundred dollars or three mouths' 
imprisonment, or both. _ 

' R. S. C. o. J65, 8. 15 ; 24 A 25 Viot. c. 98, 8. 10. ' ._ 

= R. S.C. 0.165,8. 16; U & 25 Vict. 0.98, 8. II. -•-;"": ,. 

"J0&51Vict. (D),c.4V, 3.2. 



416 A DIGEST OF 



Article 510. 

forgery of any document. 

" Every one is guilty of felouy, and liable to imprison- 
ment for lifo, who, for any purpose of fraud or deceit, 
forges or fraudulently alters any document or thing- 
written, printed, or otherwise made capable of being 
read, or offers, utters, disposes of puts off any such forged 
or altered document or thing, knowing the same to be 
forged or altered. 

- Article 511. 

punishment in cases not otherwise provided for 

in r. s. c. c. 165, and for which offender is 

by any act liable to greater punishment. 

' Every one is liable to imprisonment for life, 
[who commits any felony] for which he would be 
liable to any greater punishment than is provided for by 
E. S. C. c. 165, and which is not otherwise punishable 
thereunder, [and which consists in forging or uttering 
any document, or acting under a forged document or per- 
sonation, or making or being in possession of instruments 
for making any kind of paper, or other offence of the 
same nature. 

' R. S. C. c. 165, s. 46. This comprehensive section does not occur in the Act of the 
United Kingdom. As to the forgery of ballot papers, see Art. 171. A writing pur- 
porting to be a bank note issued by a bunking company in the State of Maine was hold to 
be within 12 Vict. (N. B.) c. 29, which made it forgery to forge or alter any writing with 
intent to defiaud ; Ji. v. Brown, 3 All. 13. 

■■iS.D. Art. 359 (f/.) 

•' R. S. C. c. 165, s. .W ; [21 & 2J Vict. c. 98, s. 48. S. This section is exceedingly verbose, 
and is not likely to be put in force. I have therefore greatly abridged it. To judge from 
the Index to the Revised Statutes, it can apply only to two statutes, 52 Geo. 3, c. 143, s. 6, 
referring to forging certificates, etc., of redemption of the land tax, and 7 & 8 (Jeo. 4, c. 53, 
8. 56, relating ♦o the forgery of instruments to receive money from the Bank of England, 
on account of the Receiver General of Excise, etc. In each case the punishment was 
originally death, and in each it was reduced to transportation for life by 1 Will. 4, c. 66, 
8. 1.] The provision is altogether unnecessary in Canada, and finds a place in the Cana- 
dian Act for no better reason than that it occurs in the Act of the United Kingdom. 



THE CRIMINAL LAW. 417 

' Article 518. 

foroeiiy at common law, misdemeanor. 

■ [Every one commits a misdemeanor who forges any 
document by which any other person may be injured, or 
utters any such document knowing it to be forged with 
intent to defraud, whether he effects his purpose or not, 

Illudrationf!. 

The forgery or uttering of any of the following documents is a mis- 
demeanor : — 

' An order from a magistrate to a gaoler to discharge a prisoner as upon 
bail being given. 

' A certilicate of character to induce the Trinity House tu enable a sea- 
man to act as master. 

■' Testimonials whereby the offender obtained an appointment as a 
police constable. 

" The like with intent to obtain the office of a parish schoolmaster. 

' A certilicate that a liberated convict was gaining his living honestly 
to obtain an allowance.] 

Article 519. 

^'' special statutory provisions RESPECTING FORGE IIY 
AND OFFENCES RESEMBLING FORGERY. 

Every one who does anything of the; things indicated 
in a general way in the first column of the schedule 
hereto, and more particularly defined in the statute cited 
in the second column is guilty of the offence '' described 
ill the third column, and liable on conviction in the 
manner mentioned in the fourth column to the punish- 
ment '" stated in the fifth column of such schedule. 

' S. D. Art. 366. 

- [It. V. Ward, East, P. C. 801 ; It. v. Shurmun, Dear. 285 (overruling It. v. Boxdt, 2 C. & 
K. 604). 

'A'.v. i/arrf»,lMoody303. " It.x. Moah,T).k'Q.bb<}. 

^ A'. V. JWkic/mI Den. 0.0.492. « A', v. .S7K(n«<«n,Dear. C. C. 285. 

■ It. V. Mitchell, 2 F. ^t F. 44.] 

'Many of such offences arc iiunisliablo under tlio general fiminal law, and others are 
of a character so special that it is not neccs.-'ary or desirable to define them at greater 
lenglh than is done in the schedule to this Article. 

'■'In some cases the offence is not in terms described in the statute. 

'"Ihavc added the term of imprisonment to which the offender is liable under the 
general criminal law (Art. 17), where no term is given in the statute. In every case 
of misdemeanor the offender is liable to a fine in addition to or in lieu of any other 
authorized punishment : Art. 12. 

2£ 



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THE CRIMINAL LAW. 



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422 A DIGEST OF 



' CHAPTER XLIV. 

forgery of trade marks, fraudulent marking of 

merchandise— offences respecting patented 

articles, industrial designs and the 

marking of timber. 

Article 520. 

definitions. 

^ In this chapter : — 

(a.) The expression " trade mark " means a trade mark 
or industrial design registered in accordance with " Tlie 
Trade Mark and Design Act " and the registration whereof 
is in force under the j>rovisions of the said Act, and 
includes any trade mark which, either with or without 
registration, is protected by law in any British possession 
or foreign State to which the provisions of section one 
hundred and three of the Act of the United Kingdom, 
known as "27te Patents, Designs, and Trade Marks Act, 1883," 
are, in accordance with the provisions of the said Act, for 
the time being applicable ; 

(b.) The expression " trade description " means any 
description, statement, or other indication, direct or indi- 
rect, 

(i.) as to the number, quantity, measure, gauge or 
weight of any goods ; or 

(ii.) as to the place or country in which any goods were 
made or produced ; or 

1S.D. Arts. 364, 366. ^ - ' %v^ ^ 

; The Merchandise Marks Act, 1862, on which Articles 364 and 365 of Stephen's Digest 
are founded was repealed by the Merchandise Marks Act, 1887. The latter Act was 
followed in Canada in The Merchandise Marks OlTences Act, 1888 (51 Vict. (D.) c. 41) by 
which The Trades Marks OfiFences Act (R. S. C. c. 166) was repeale^L 

- 51 Vict. (D.) c. 41, s. 2 ; 50 & 51 Vict. c. 28, ss. 3, 5, 



THE CRIMfXAL LAW. 423 

(iii.) as to the mode of manui'aci uriug' or producing any 
goods ; or 

(iv.) as <o the material of which any goods arc com- 
posed ; or 

(v.) as to any goods being the subject of an existing 
patent, privilege, or copyright ; 

And the use of any figure, word, or mark which, accord- 
ing to the custom of the trade, is commonly taken to be 
an indication of any of the above matters, shall be deemed 
to be a trade description within the meaning of this 
chapter. 

(6-.) the expression " false trade description " means a 
trade description which is false in a material respect as 
regards the goods to which it is applied, and includes 
every alteration of a trade description, whether by way of 
addition, efFacement, or otherwise, where that alteration 
makes the description false in a material respect ; and the 
fact that a trade description is a trade mark, or part of a 
trade mark, shall not prevent such trade description being 
deemed to be a false trade description within the meaning 
of this chapter ; 

[d.) The expression " goods " means anything which is 
merchandise or the subject of trade or manufacture ; 

(e.) The expression "covering" includes any stopper, 
cask, bottle, vessel, box, cover, capsule, case, frame or 
wrapper ; and the expression " label " includes any band 
or ticket ; • . • 

(/.) The expressions " person, manufacturer, dealer, or 
trader," and " proprietor " include any body of persons 
corporate or unincorporate ; 

[g.) The expression " name " includes any abreviation 
of a name. 

The provisions of this chapter respecting the applica- 
tion of a false trade description to goods extend to the 
application to goods of any such figures, words or marks, 
or arrangement or combination thereof, whether including 



424 A Did EST OF 



a trade mark or not, as are roasoiia])ly calculated to lead 
persons to believe that the goods are the manufacture or 
merchandise ol' some person other than the person whose 
manufacture or merchandise they really are : 

The provisions of this chapter r(>specting the applica- 
tion of a false trade description to goods, or respecting 
goods to which a false trade description is applied, extend 
to the application to goods of any false name or initials of 
a person, and to goods with the false name or initials of a 
por^^n applied, in like manner as if such name or initials 
were a trade description, and for the purpose of this 
chapter the expression "false name or initials" means 
as applied to any goods, any name or initials of a person 
which 

(i.) are not a trade mark, or part of a trade mark ; and 

(ii.) are identical with, or a colorable imitation of, the 
name or initials of a person carrying on business in con- 
nection with goods of the same description, anji not 
having authorifzed the use of such name or initials ; or 

(iii.) are either those of a fictitious person or of some 
person not bond fide carrying on business in connection 
with such goods. 

Article 521. 
words or marks on watch cases. ' 

^ "Where a watch case has thereon any words or marks 
which constitute, or are by common repute considered as 
constituting, a description of the country in which the 
watch was made, and the watch bears no description of 
the country where it was made, those words or marks 
shall prima fade be deemed to be a description of that 
country within the meaning of this Chapter, and the provi- 
sions of this Chapter with respect to goods to which a false 
description has been applied, and with respect to selling 

» 51 Vict. (D.) 0. 41, s. 11 ; 50 & 51 Vict. c. 2i, s. 7. 



THE CRIMINAL LiXW. 425 

ov exposing? for, or havin<if in iiosscssiou for sale, or any 
piirposf^ of trade or manufacliin', goods with a false trade 
description, shall apply accordingly; and for the pur- 
poses of this Article the expression "watch" means all 
that portioji of a w^atch which is not the watch case. 

AllTICTiE 622. 

DEFINITION OF FOIIOERY OF A TRADE MARK — IJURDEN OF 

PROOF. 

' Every one is deemed to forge a trade mark who 
either — 

{a.) without the assent of the proprietor of the trade 
mark makes that trade mark or a mark so nearly re- 
sembling- that trade mark as to be calculated to deceive ; 
or 

{h.) falsifies any genuine trade mark, w^hether by alter- 
ation, addition, efFacement or otherwise : 

And any trade mark or mark so made or falsified is, in 
this chapter, referred to as a forged trade mark : 

And in any prosecution for forging a trade mark the 
burden of proving the assent of the proprietor lies on the 
defendant. 

Article 523. 

definition of applying trade marks to goods — 

burden of proof. 

■ Every one is deemed to apply a trade mark, or mark, 
or trade description to goods who — ' 

[a.) applies it to the goods themselves ; or 
[h.) applies it to any covering, label, reel, or other thing 
in or w^ith which the goods are sold or exposed or had in 
possession for any purpose of sale, trade or manufacture ; 
or 

' 51 Viot. (D.) c. 41, ?. 3 ; 50 k 51 Vict. c. 28, s. 4. 
- 51 Vict. (D.) c. 41, !-. 4 ; 50 k 51 Vict. c. 28, ?. 5. 



426 A Did EST OF 



(c.) places, onclosi'H or unufxt's any ju^oods which uro 
sold or oxpost'd or had in posse.sHioii Ibr any purpose ol" 
sale, trade or inimnracturo, in, with or to any covering, 
label, reel, or other thin^' to which a trade mark or trade 
description has been applied ; or 

{(l.) uses a trade mark or mark or trade description in 
any manner calculated to lead to the belief that the g'oods 
in connection with which it is used are desiiiiiated or de- 
scribed by that trade mark or mark or trade description: 

A trade mark or mark or tradt^ description is di'cmed to 
be applied whether it is woven, impressed or otherwise 
worked into, or annexed or aliixed to, the goods, or to any 
covering, label, reel or other thing. 

Every one is deemed to falsely apply to goods a trade 
mark or mark, who, without the assent of the proprietor 
of the trade mark, applies such trade mark, or a mark 
so nearly resembling it as to be calculated to deceive ; 

and in any prosecution for falsely applying a trade 
mark or mark to goods, the burden of proving the assent 
of the proprietor lies on the defendant. 

Article 524. 
forgery of trade marks, etc.— defence. 

' Every one is guilty of a misdemeanor who 

(a.) forges any trade mark ; or 

{b.) falsely applies to goods auy trade mark, or any 
mark so nearly resembling a trade mark as to be calcu- 
lated to deceive ; or ' 

(c.) makes any die, block, machine or other instru- 
ment, for the purpose of forging, or being used for 
forging, a trade mark ; or 

1 51 Vict. (/;.) c. 41, ». 6 ; f & 51 Vict. c. 2S. s. 2. And see R. S. C. c. 63, ». 17. No pro- 
seoution for any offence defined in Articles 524-520, 528 and 520, shall be commenced after 
the expiration of three years next alter the commission of the offence, or of one year next 
after the first discovery thereof by the prosecutor, whichever expiration first happens ; 
8 17. 



THE CJiJMIXA L LA W, 48T 

{d.) npplicH niiy ialsc trado (L'scriptiou to ^oods ; ov 
{e.) disposes of, or has in his poss('ssi(Ui, any di(», l)h)c'k, 

machiut' or other iustruiiieut, lor the purpose! ol' i'orgiug 

ii trade mark ; or 
(/.) i-auses any of sueh things to be douo, 
Unless he proves that he acted without int«'Ut to 

defraud. 

AiiTlCLK 525. 

SKLLING GOODS KALSEI.Y MAUKKD— DEFENCE. 

' Every one is ffuiUv of a misdemeanor who sells or 
exposes for, or lias in his possession for sale, or any pur- 
pose of trade or manufacture, any goods or things to 
which any forged trade mark or false trade description is 
applied, or to which any trade mark, or mark so nearly 
resembling a trade mark as to be cahnihited to deceive, is 
falsely applied, as the case may be, unless he proves 

(a.) that having taken all reasonable precaution against 
committing such an offence - he had, at the time of the 
commission of the alleged olfence, no reason to suspect 
the genuineness of the trade mark, mark or trade 
description ; and 

(b.) that on demand made by or on behalf of the 
prosecutor, he gave all the information in his power with 
respect to the persons from whom he obtained such 
goods or things ; or 

(c.) that otherwise he had acted innocently. 

' 51 Vict. (D.) c. 11, s. 6 ; oO & 61 Vict. c. 28, s. 2. On the sale or in the contract for the 
sale of any goods to which a trade mark or mark or trade description has been applied, 
the vendor is deemed to warrant tiiat the mark is a genuine trade mark and not forged 
or falsely applied, or that the trade description is not a false trade description, unless 
the contrary is expressed in some writing signed by or on behalf of the vendor and 
delivered at the time of the sale or contract to and accepted by the vendee ; 51 Vict. (D) 
C. tl, s. 18 ; 50 .t 51 Vict. c. 28, s. 17. 

- " An otfonce against this Act." The words are wider than those used in the text, but 
it is probable that in actual practice the defence would be narrowed to showing that 
theoffender had taken all reasonable precautions against committing the ofTcnco with 
which ho was charged. 



428 .1 Drar.sT of 



Ai{'ri('i<K r)ii!«5. 

PEIJ.INCi IIOTTF-KS MAllKKI) WITH TllADK MAUK WITHOITT 

CONHKNT OF t)WNKU. 

' Kvory person, other tliiin the lawful owner of tho 
IxittleN iiiul proprietor of tho trade mark hereinafter re- 
f(Mre(l to, who «ellN, or exposes or oilers for sale, or 
traliies in bottles marked with the trade mark of the 
owner thereof, and without the assent of such owner, is 
guilty of a misdemeanor. 

AUTICLK 527. 

rUMSllMKNT OF 0FF1<:N(!KS DEFINFP in this CIHAl'TCIl. 

^ Every person guilty of any olfenee deiined in this 
chapter ' is liable 

{(I.) on conviction on indictment to imprisonment, 
with or without hard labor, for a term not exceeding two 
years, or to fine, or to both imprisonment and line ; and 

{h.) on summary conviction, to imprisonment, with or 
without hard labor, for a term not exceeding four 
months, or to a fine not exceeding one hundred dollars ; 
and in case of a second or Hubse([uent conviction to im- 
prisonment, with or without hard labor, for a term not 
exceeding six months, or to a line not exceeding two 
hundred and iifty dollars. 

In any case every (chattel, article, instrument or tiling, 
by means of, or in relation to which, the oil'ence has been 
committed shall be forfeited. 

Article 528. 

falsely representina that goods are manufactured 
for her majesty, etc. 

* Every person is guilty of a misdemeanor and liable, 

1 51 Vict. (D) c. 41. .-. 7. 

- 51 Vict. (D) c. 41, s. 8 ; 50 A- 51 Vict. c. 28, s. '2. 

•' This nppeiirs to bo tlio ellect of the Act, but see ss. 21, 22, Arts 52^,529. 

* 51 Vict. (D) c. 41, .". 21 ; 50 A 51 Vict. c. 28. s. 20. 



THE Cli I M I A'. I A A . 1 IT. 129 



on •nmmiivv fouviition, t(» u pniulty not oxocvdinj^ ono 
ImiKli't'd dollars who I'lilsfly rcprfm-ntM thiit any ^oods 
an^ miidc l»y a ixTsoii hoidiu;;' a Itoyjil Wunaiit, or lor tho 
Borvift' oi" Ilt-r Mnjesty, or anyol'llu' K'oynl iMiuiily, or any 
(lOVtMinnciil Dcjmrtmt'nl of tho Unih'd Kiimdoni or of 
Canada. 

AUTICLK 520. 

UNLAWKrii IMI'Oirr.VTIOX OF (inODS LIAIJLE To 1-OU- 
KKITUUE rNDKU THIS CIIAl'TKU. 

' l!]vt'ry on*' is i^uilty of a niisdomcanor and liablo, on 
sumuiury convirlion, to a penalty of not more thin live 
hundred dollar.s nor less than two hundred dollars who 
imports or attempts to import any ^■o«)ds which, if sold, 
would he forieited under tho provisions of this <;haptor, 
or any i^oods manuraeturt'd in any torei<?n state or country 
which b(Mir any name or trade nuirk which is or purports 
to be the name or trade mark of any manufactunu-, dealer 
or trader in the United King'dom or in (^mada, unless 
such name or trade mark is accompanied ])y a delinite 
indication of the Ibreijj;!! state or country in which the 
goods weie made or produced ; and such goods shall be 
forfeited. ■ 

Article 530. 

defence where person charced innocently in the 
ordinary course of business makes instru- 
ments for forging trade marks. 



Wlienever a defendant is charged with making* any 



' 61 Viot. (D) c. 41, .*. 22 ; 50 k 51 Vict. e. 28, *«. 10. Any name of a place on any good." 
identical with, era coloriiblo imitation of.tlio nanio of a place in the Unifoil Kinmlnm 
or Canada, not accompanied with tho name of tic country in which it i" -situate, in, unicHa 
the .«anio, in the opinion of tho Minister of Cusioius, is not calculated to deceive, to be 
treated as the name of a place in tho United Ki.iBdoni or Canada;.". 22(2). For other 
provisions rcspectinK importation of i;ooils sec s. 2i. '?>) and (4). 

■"andmay bo seized by any officer of tho Customs and dealt with in like manner as 
" any goods or things forfeited under this Act; " 51 Viot. (D) c. 41, s. 22. 

'' 51 Vict. (D) c. 41, s. 5 i 50 k 51 Vict. c. 28, s. 6. 



430 . A DIGEST OF 



die, block, machine or other instrument for the purpose 
of forging, or being used for forging a trade mark, or with 
falsely applying to goods any trade mark, or any mark so 
nearly resembling a trade mark as to be calculated to 
deceive, or with applying to goods any false trade 
description, or causing any of the things in this Article 
mentioned to be done, and proves 

{a.) that in the ordinary course of his business he is 
employed, on behalf of other persons, to make dies, blocks, 
machines or other instruments for making or being used 
in making, trade marks, or, as the case may be, to apply 
marks or descriptions to goods, and that in the case 
which is the subject of the charge he was so employed 
by some person resident in Canada, and was not 
interested in the goods by way of profit or commission 
dei)eudent on the sale of such goods ; and 

(b.) that he took reasonable precautions against com- 
mitting the offence charged ; and 

(c.) that he had, at the time of the commission of the 
alleged offence, no reason to suspect the genuineness of 
the trade mark, mark or trade description ; and 

(d.) that he g£.ve to the prosecutor all the information 
in his power with respect to the person by or on whose 
behalf the trade mark, mark or description was applied ; 

He shall be discharged from the prosecution, but shall 
be liable to pay the costs incurred by the prosecutor, 
unless he has given due notice to him that he will rely 
on the above defence. 

r Article 531. 

DEFENCE WHERE OFFENDER IS A SERVANT. 

* No servant of a master, resident in Canada, who bond 
fide acts in obedience to the instructions of such master, 
and, on demand made by or on behalf of the prosecutor, 

>51 Vict. (D.) c. 41, s. 20 (3) ; 50 & 51 Viot. c. 28, s. 19 (3). 



THE CRIMINAL LAW. 431 

gives full information as to his master, is liable to any 
prosecution or punishment for any offence defined .in this 
chapter. 

AllTICLE 532. 

EXCEPTION RESPECTIXO T'UDE DESCRIPTION LAWFULLY 
APPLIED TO GOODS ON 22ND MAY, 1888, ETC. 

' The provisions of this chapter with respect to false 
trade descriptions do not apply to any trade description 
which, on the 22nd May, 1888, was lawfully and gener- 
ally applied to goods of a particular class, or manufac- 
tured by a particular method, to indicate the particular 
class or method of manufacture of such goods. Provided, 
that where such trade description includes the name of 
a place or country, and is calculated to mislead as to the 
place or country where the goods to which it is applied 
were actually made or produced, and the goods are not 
actually made or produced in that place or country, such 
provisions shall apply, unless there is added to the trade 
description, immediately before or after the name of that 
place or country, in an equally conspicuous manner 
with that name, the name of the place or country in 
which the goods were actually made or produced, with 
a statement that they were made or produced there. 

Article 533. 

patentee selling patented article not 

v marked, etc. 

^ Every one is liable to a penalty not exceeding one 
hundred dollars, and in default of payment thereof to 
imprisonment for a term not exceeding two months, who 

' 51 Vict. (D.) c. 41. s. 19 ; 50 & 51 Vict. c. 23, s. 18. 

-' R. S. C. c. 61, s. 54. The j e;ir of the date of the patent is to be marked thus, " Patented 
1880," or as the case may be. The penalty is recoverable by civil aotion ; R. S. C. c. 180, s. 1 



4S2 A DJdEST :.-f 



sells or offers for sale any article patented by him under 
The Patent Act, if the year of the date of the patent is not 
stamped or engraved on such article, or on a label affixed 
thereto, or to the package in which the same is contained. 

Article 534. 
falsely marking aiiticle as tatented. 

' Every one is guilty of a misdemeanor, and liable to a 
fine not exceeding two hundred dollars, or to imprison- 
ment for a term not exceeding throe months, or to both, 
who 

(a.) writes, paints, prints, moulds, casts, carves, en- 
graves, stamps or otherwise marks upon anything made 
or sold by him, and for the sole making or selling of which 
he is not the patentee, the name or any imitation of the 
name of any patentee for the sole making or selling of 
such thing, without the consent of such patentee; or 

(b.) without the consent of the patentee, writes, paints, 
prints, moulds, casts, carves, engraves, stamps or other- 
wise marks upon anything not purchased from, the 
patentee, the words "patent," "letters patent," "Queen's 
pateuu," " patented," or any word or words of like import, 
with the intent of counterfeiting or imitating the stamp, 
mark, or device of the patentee, or of deceiving the public 
and inducing them to believe that the thing in question 
was made or sold by or with the consent of the patentee 
or his legal representative ; or 

(c.) offers for sale as patented any article not patented 
in Canada, for the purpose of deceiving the public. 

Article 535. 

unlawfully applying industrial design to any 

article, etc. 

Every one is liable, on summary conviction, to forfeit 



2 



» R. S. C. 0. 61, s. 55. 
^K. S.C.c.63,8.31. 



THE CRIMINAL LA W. • 433 

to the proprietor of any industrial design, registered 
under TJte Trade Mark and Design Act, or to his assignee, 
a sum not exceeding one hundred and twenty dollars, 
and not less than twenty dollars, with costs, who, during 
the existence oi' the exclusive right (either of the entire 
or partial use of such design) without the license in 
writing of the registered proprietor, or of his assignee, as 
the case may be, 

(rt.) applies such design, or a fraudulent imitation 
thereof^ to the ornamenting of any article of manufacture, 
or other article to which an industrial design may be ap- 
plied or attached, for the purposes of sale ; or 

{b.) publishes, sells or exposes for sale or uses any such 
article to which such design or fraudulent imitation 
thereof has been applied. 

Apticle 536. 

FALSELY PLACING ON ANY ARTICLE WORDS DENOTING THE 
REGISTRATION OF AN INDUSTRIAL DESIGN, ETC. 

' Every one is liable, on summary conviction, to a 
penalty not exceeding thirty dollars, and not less than 
foT dollars and costs, who places the word "registered " 
or the letters " Rd.," upon any article for which no design 
has been registered, or upon any article for the design of 
which the copyright has expired, or who advertises the 
same for sale as a registered article, or unlawfully sells, 
publishes or exposes for sale such article, knowing the 
same to have be^n fradulently marked, or that the copy- 
right therefor ha 5 expired. . 

Article 537. 
using timber marks unlawfully. 
'^ Every one is liable, on summary conviction before 

' R. S. C. c. 63, s. 32. 

- K. S. C. C.64, s. 7. TJ. • -re- as in parentheses are not in the Act, but they are, of 

course, implied. See Art. lU. 

2p 



484 • A DIGEST OF 



two justices of the peace, to forfeit to the proprietor of 
any mark registered under Tlie Act Respecting the Marking 
of Timber a sum not exceeding one hundred dollars, and 
not less than twenty dollars and costs, who (without 
lawful authority) marks any timber with any such mark, 
or any part oi such mark. 



THE CRIMINAL LAW. 435 



CHAPTER XLY. 

» PERSONATION. 

Article 638. 

personation at civil service examinations. 

- Every one who, at any examination held under Tlie 
Civil Service Act, personates any candidate or employs, 
induces or allows any person to personate him, is guilty 
of a misdemeanor, and liable, on summary conviction, to 
imprisonment for a term not exceeding six months, or to 
a fine not exceeding two hundred dollars, and, if he is 
employed in the Civil Service, to be dismissed therefrom 

Article 539. 

personation at militia parades. 

' Every one is guilty of a misdemeanor and liable to a 
fine of one hundred dollars, who falsely personates another 
at any parade of the Militia, or on any other occasion, for 
any of the purposes required by The Militia Act. 

Article 540. , 



FRAUDULENTLY ACTING AS AGENT OF AUTHOR IN 
registration OF COPYRIGHT. 

* Every one is guilty of a misdemeanor, and liable to 

'Seensto:— 

personation at elections, Art. 170 ; 

personation of owner of shares or interest in any public fund, or capital stock of any 
company, or of any claim to any crown grant) scrip, &c,, Article 493 (c.) ; and 

acknowledging recognizance, &c., in false name. Art. 506. 

= R. S. C. c. 17, s. 9 (6), as enacted in 51 Vict. (D), c. 12, s. 2. Every one who surrepti- 
tiously procures from, or without authority furnishes to, any person any examination 
paper is liable to the same punishment. 

' R. S. C. c. 41, s. 99. The time within which the offender may be prosecuted is limited 
to sis months ; s. 112. 

<R. S. C.c. 62,8. 29. „ „ 

2p 2 



43G A DIGEST OF 



five years' imprisonment, ' who fraudulently assumes 
authority to act as agent of the author or of his legal 
representative for the registration of a temporary copy- 
right, an interim copyright, or a copyright. 

Article 541. 

personation to obtain deposits in savings banks. 

^ Every one is guilty of a misdemeanor, and liable to 
five years' imprisonment, ' who, with intent to defraud, 
falsely pretends to be th ? owner of any deposit made under 
An Act Respecting Government Savings Banks, or of the 
interest upon such deposit (or of any part of such deposit 
or interest), and who is not such owner, and who demands 
or claims from the agent with whom such deposit has 
been made, or from any other person employed under such 
Act, the payment of such deposit or interest, or of any 
portion thereof, as the case may be, and whether he does 
or does not thereby obtain any such deposit or interest, or 
any part thereof. 

Article 542 

falsely representing oneself to be a notary, etc., 
and protesting bill in quebec. 

^ Every one is guilty of a misdemeanor, and liable to 
imprisonment for a term not exceeding six months, who 
falsely representing himself to be a notary for or justice 
of the peace in the Province of Quebec, acts as such in 
and about the protesting of a bill or note, or in and about 
the noting of a bill. 

' Art. 17. 

- R. S. C. c. 121, s. 20. A similar provision is contained in R. S. C. c. 122, s. 33 in respect 
to deposits in certain savings banks in Ontario and Quebec, to which the latter statute 
applies. 

8 R. S. C. c. 123, s. 30. 



THE CRTMFNAL LAW. 437 



CHArTER XLVI. 

' OFFENCES RELATING TO THE COIN. 

^ Article 543. 
interpretation of terms. 

^ In this chapter the following words and expressions 
are used in the following senses : — 

" Current gold or silver coin," includes any gold or sil- 
ver coin coined in any of Her Majesty's mints, or gold or 
silver coin of any foreign prince or state, or country, or 
other coin lawfully current, by virtue of any proclama- 
tion or otherwise, in any part of Her Majesty's dominions. 

" Current copper coin," includes copper coin coined in 
any of Her Majesty's mints, or lawfully current by virtue 
of any proclamation or otherwise in any part of Her Ma- 
jesty's dominions. 

" Copper coin," includes any coin of bronze or mixed 
metal and every other kind of coin other than gold or 
silver. 

" Counterfeit " means false, not genuine. 

Any genuine coin prepared or altered so as to resemble 
or pass for any current coin of a higher denomination is 
a counterfeit coin. 

' A coin fraudulently filed at the edges so as to remove 
the milling, and on which a new milling has been added 
to restore the appearance of the coin, is a counterfeit coin. 

•''"G-ild" and "silver," as applied to coin, include 
casing with gold or silver respectively, and washing and 

1 3 Hist. Cr. Law, 177-180. 

2 S. D. Art. 369. 

'■> K. S. C. c. 167, s. 1 ; 21 & 25 Vict. c. 99, s. 1. For definition of " having in possession ' 
see page 4. 
*]i. V. Herman, L. R. i Q. B. D. 284. 
"* These definitions are not taken from section 1 but from the Act generally 



438 A DTdKST OF 



coloring by any means whatsoever with any wash or 
materials capabh^ of producing the appearance of gold or 
silver respectively. 

' " Utter " includes " tender " and " put off." 

- Article 544. 

COUNTEllFEITING COINS, ETC. 

Every one is guilty of felony and liable to imprison- 
ment for life in cases {a), {b), (c), {d) and (e) and for seven 
years in case (/) who 

'' (rt.) * makes any counterfeit coin resembling or appa- 
rently intended to resemble or pass for any current gold 
or silver coin ; 

■' (h.) gilds or silvers any coin whatsoever, resembling 
or apparently intended to resemble or pass for any current 
gold or silver coin ; 

(c.) gilds or silvers any piece of silver or copper, or of 
coarse gold or coarse silver, or of any metal or mixture of 
metals respectively, being of a fit size and figure to be 
coined, and with intent that the same shall be coined 
into counterfeit coin resembling or apparently intended 
to resemble or pass for any current gold or silver coin ; 

{d.) gilds any current silver coin, or files or in any 
manner alters such coin, with intent to make the same 
resemble or pass for any current gold coin ; 

(e.) gilds or silvers any current copper coin, or files or 
in any manner alters such coin with intent to make the 
same resemble or pass for any current gold or silver 
coin ; or 

" (/.) makes any counterfeit coin resembling or appa- 
rently intended to resemble or pass for any current cop- 
per coin. 

1 This definition is not taken from section 1 but from the Act generally 

a S. D. Arts. 370 (a), (b), (c), (d), 372 (a). 

3 R. S. C. c. 167, s. 3 ; 2t & 25 Vict. c. 99, s. 2. 

*" Falsely makes."' 

5 R. S. C. c. 167, s. 4 ; 21 & 25 Vict. c. 99, s. 3. 

« R. S. C. c. 167, s. 15 ; 24 & 25 Vict. c. 99, 8. 14. 



THE cm Mr N A L LA W. UJO 

' Article 545. 
dealing in and impoiltin(t counterkeit coin. 

Every one is guilty of felony and liable to imprison- 
ment for life in cases (a) (i) and [b) and for seven years 
in case {a) (ii) who, without lawful authority or excuse, 
the proof whereof shall lie on him, 

- (a.) buys, sells, receives, pays or puts olF, or offers to 
buy, sell, receive, pay or put off, at or for a lower rate or 
value than the same imports, or was apparently intended 
to import, 

(i.) any counterfeit coin resembling or apparently inten- 
ded to resemble or pass for any current gold or silver coin, 

(ii.) any counterfeit coin resembling or apparently in- 
teded to resemble or pass for any current copper coin, 

•'' {b.) imports or receives into Canada any counterfeit 
coin resembling or apparently intended to resemble or 
pass for any current gold or silver coin, knowing the 

same to be counterfeit. 

Article 546. 

manufacture of copper coin and importation of 
uncurrent copper coin. 
^ Every one who manufactures in Canada any copper 
coin, or imports into Canada any copper coin, other than 
current copper coin, with the intention of putting the 
same into circulation as current copper coin, is liable, on 
summary conviction, to a penalty not exceeding twenty 
dollars for every pound Troy of the weight thereof ; and 
all such copper coin so manufactured or imported shall be 
forfeited to H^r Majesty. , 

'" Article 64Y. 

EXPORTATION OF COUNTERFEIT COIN. 

^ Every one is guilty of a misdemeanor and liable to 

'S. D. Arts. 370(e), (/) 372(c). 

"■ R. S. C. 0. 167, S8. 7, 15 ; 24 & 25 Vict. c. 99, gs. 6, 14. 

=• R. S. C. c. 107, s. 8 ; 24 & 25 Viot. c. 99, s. 7. 

* R. S. C. c. 167, ?, 2«. 

6 S. D. Art. 375 (a). 

«R.S.C.c. 167,8.9; 24 & 25 Viot. c. 99, s. 8. 



440 A DKIKST OF 



imprisonm«»nt for any t(»rm Ichh than two years who, 
without hiwt'ul authority or oxruso thci prool' whoroof 
•shall lio on him, exports or puts on board any ship, 
vessel or boat, or on any railway or carriage or vehicle of 
any description whatsoever, tor the purpose of being ex- 
ported I'rom Canada, any counterfeit coin resembling or 
apparently intended to resemble or pass for any current 
coin or for any foreign coin of any prince, country or 
state, knowing the same to be counterfeit. 



' Article 548. 
making instruments ' ^ coining. 

Every one is guilty of felony, and liable to imprison- 
ment for life in cases (a), {b) and (c), and for seven years 
in case {d), who, • without lawful authority or excuse, the 
proof whereof shall lie on him, makes or mends, or begins 
or proceeds to make or mend, or buys or sells, or has in 
his custody or possession, 

'(«.) any puncheon, counter puncheon, matrix, stamp, 
die, pattern or mould, in or upon which there is made or 
impressed, or which will make or impress, or which is 
adapted and intended to make or impress the figure, 
stamp or apparent resemblance of both or either of the 
sides of any current gold or silver coin, or of any coin of 
any foreign prince, state or country, or any part or parts 
of both or either of such sides ; 

{b.) any edger, edging or other tool, collar, instrument 
or engine adapted and intended for the marking of coin 
round the edges with letters, grainings, or other marks 
or figures, apparently resembling those on the edges of 

»S. D. Art. 370(f/),372(W. 

2 [A orders a die for coining counterfeit half-crowns from B. B communicateH with 
the Mint, and is permitted by them to finisih and deliver the die to A. A receives it. A 
has the die in his possession without lawful excuse ; U. v. Harvty, L. R. 1 C. C. R. 285.] 

3 R. S. C. c. 167, s. 24 ; 21 & 25 Vict. c. f 9, s. 24. The word '* knowingly " precedes the 
word " makes " in the provisions from which clauses («) and (d) are taken. 



THE cniMINAL LAW. 441 

any such coin, knowinn- the same to bo so udiiptcd and 
intended ; 

(r.) any pivs.s for coinafTf, or any cuttin<>' engine for 
cutting', by force of a sck^vv or of any other lonlrivaiKx', 
round bhmkH out of gold, silver or other metal or mix- 
ture of metals or any other machine, knowing such press 
to bo a press for coinage, or knowing such engine or ma- 
chintz to have been used or to be intended to be used for 
or in order to the false making or counterfeiting of any 
such coin ; 

{(1.) ' any instrument, tool or engine adapted and 
intended for the counterfeiting any current copper coin. 

'^ Article 549. 
bllinoina instruments for coinino from mints into 

CANADA. 

'Every one is guilty of felony, and liable to imprison- 
ment for life, who, without law^ful authority or excuse, 
the proof whereof shall lie on him, knowingly conveys 
out of any of Her Majesty's mints into Canada, any pun- 
cheon, counter puncheon, matrix, stamp, die, pattern, 
mould, edger, edging or other tool, collar, instrument, 
press or engine, used or employed in or about the coin- 
ing of coin, or any useful part of any of the several arti- 
cles aforesaid, or any coin, bullion, metal or mixture of 
metals. 

^Article 550. 
clippina current gold or silver coin. 
' Every one is guilty of felony, and liable to fourteen 

• E. S. C. c. 167, s. 15 ; 24 k 25 Viot. c. 09, «. 14. 
•S. D. Art. 370 (A). 

' K. S. C. c. 167, 8. 25 ; 24 & 25 Vict. c. 99, s. 25. 
<S.D. Art.371. 

* R. S. C. c. 167, 8. 5 ; 24 & 25 Vict. o. 99, p. 4. As to the riRht of any person, and the 
duty of revenue officers, to whom light coin is tendered to break the sumo, see R. S. C. c. 
167, s. 26 ; 24 & 25 Vict. c. 99, s. 26. 



442 A D Hit: ST OF 



years' imprisonnn'iit, who iinpiiirs, diininiNhcH or lii^htcns 
any current j»()I(l or Hilvcr loiii, with inlfiit (hat th<' t'oiu, 
HO imi)airt'<l, dijniiiiwhed, or lij^hlemtl may paHs lor curn-nt 
goUl or Hilvcr coin. 

' Articlk 551. 

DEFACIN(^ CURRENT COINH. 

■ Every one is guilty of a iiiiHdcmeauor, and liahlo to 
one year's imprisonment, who defaces any current gold, 
silver or copper coin, by stamping thereon any names or 
words, whether su«li coin is c is not thereby diminished 
or lightened, and afterwards tenders the same. 

' Article 552. 
rassino clippings, etc , of current gold or silver 

COIN. 

* Every one is guilty of a felony, and liable to seven 
years' imprisonment, who unlawfully has in his custody 
or possession any filings or clippings, or any gold or 
silver bullion, or any gold or silver in dust, solution or 
otherwise, which have been produced or obtained by 
impairing, diminishing or lightening any current gold or 
silver coin, knowing the same to have been so produced 
or obtained. 

"Article 553. 

POSSESSING counterfeit COINS. ' 

Every one is guilty of a misdemeanor, and liable to 
three years' im])risonment in case («.), and to one year's 
imprisonment in ease (6.), who has in his custody or 

' 8. D. Art. 375 (r). " 

2 R. S. C. 0. 167, 8. 17 ; 24 k 25 Vict. c. 99, t>. 16. : 

^S. D. Art. 372(/). 

* R. S. C. c. lf)7, H. 6 ; 24 k 25 Vict. c. 99, s. 5. 

liS.D. Arts. 374(c), 375 (c). 



TJIK CRIMINAL L.\ \V. 448 

poNNi'MHioii, knowing th(» stinm to b«» fountorlbit, and with 
iutoiit to utt«'r the Niimo or iiiiy ol' tlu^m. 

' {a.) liny couiitt'ircit coin rcMi'mhling or iijiparontly in- 
U'ikUhI to rcHoinblit or puHH lor any curruui gold or silvor 
coin : or 

•' (b) three or nioro pioccH of counterfeit coin rcHcmhling 
or apparently intended to resemhlo or pass lor any cur- 
rent copper coin. 

' AllTlCLK 554. 

UTTEUINO rOUNTEIlKElT Oil LKHIT COINS, METALS, ETC. 

Every one is guilty of a mlMdomoanor, and lii ble in 
case (a.) to fourteen years' iinprisonm(Mit, and in cases 
[b), (c.) and {d.) to one year's iniprisonniont, who 

' {a.) utters any counterfeit coin resem])ling or appa- 
rently intended to resemble or pass for any current gold 
or silver coin, knowing th.' same to be (Counterfeit ; 

' {b.) utters, as being current, any gold or silver coin of 
loss than its lawful weight, knowing such coin to have 
been impaired, diminished or lightened, otherwise than 
by lawful wear. 

" (c.) with intent to defraud, utters, as or for any current 
gold or silver coin, any coin not being such current gold 
or silver coin, or any medal, or piece of metal or mixed 
metals, resembling, in size, figure and color, the current 
coin as or for which the same is so uttered, such coin, 
medal or piece of metal or mixed metals so uttered being 
of less value than the current coin as or for which the 
same is so uttered ; 

^ {(l.) utters any counterfeit coin resembling or appa- 

' R. S. C. c. 167, s. 12 ; 24 A 2.5 Viot. c. -9, c. 11. 
" R. 8. C. 8. 167, 8. 16 ; 24 ct 25 Viot. c. l>9, f.. 16. 
"S.D. Art. 371 ((..), 375(6.), ((/). , 

< R. S. C c. 167, 8. 10 ; 24 k 25 Vict. c. 90, 8. 9. -1^-- •-^-— — — - 
'R.S.C. 0.167,8.11. 

« R. S. C. c. 167, 8. 14 ; 24 & 25 Vict. c. 90, 8. 13. [As to the degree of resemblance neces • 
Bary to bring a modal within this section, see R. v. Robertson, L. & C. 604.] 
' R. S. C. c. 167, 8. 16 ; 24 & 25 Vict. c. 99, p. 15. 



444 A D TO EST OF 



rently intended to resemble or pass for any current cop- 
per coin, knowing' the same to be counterfeit. 

' Article 555. 

punishment of subsequent offences. 

^ Every one who, having been convicted of any misde- 
meanor defined in Art. 553 (a.), or in clause {a.) or (6.) of 
Art. 554, or of any misdemeanor or felony defined in this 
Chapter, or any Act relating to the coin, afterwards com- 
mits any of the misdemeanors defined in Art. 563 (a.) or 
in clause (a.) or {b.) of Art. 554, is guilty of felony and 
liable to imprisonment for life. 

Article 556. 

UTTERING defaced COIN. 

^ Every one who utters any coin defaced, by having 
stamped thereon any names or words, is liable, on summary 
conviction before two justices of the peace, to a penalty 
not exceeding ten dollars ; but no person shall proceed for 
any such penalty without the consent of the Attorney- 
G-eneral for the Province in which such offence is alleged 
to have been committed. 

Article 55*7. % 

UTTERING UNCURRENT COPPER COINS. :;::'::' ■'l^^/ 

* Every one who utters, or offers in payment, any copper 
coin, other than current copper coin, is liable on summary 
conviction to a penalty of double the nominal value there- 
of, and in default of payment of such penalty to eight 
days' imprisonment. 

» S. D. Art. 374 (rf.) 

2 R. S. C. 0. 167, s. 13 ; 24 & 25 Vict. c. 99, s. 12. 

3 R. S. C. c. 167, s. 18 ; 24 and 25 Vict. o. 99, s. 17. 
* R. S. C. 0. 167, s. 33. 



THE CRIMINAL LAW. 445 



' Article 558. 
^ uncurrent foreign coins. 

Every one is guilty of a felony in cases [a) and (6) (i) 
and of a misdemeanor in cases (6) (ii) (t) and {d) who 

' (a.) makes any counterfeit coin or silver coin, resem- 
bling or apparently intended to resemble or pass for any 
gold or silver coin of any foreign prince, state or country, 
not being current coin, 

{h.) without lawful authority or excuse, the proof of 
which shall lie on him ; 

' (i.) brings or receives into Canada any such counter- 
feit coin, knowing the same to be counterfeit ; 

•'' (ii.) has in his custody or possession any such coun- 
terfeit coin, knowing the same to be counterfeit and with 
intent to put off the same ; 

"' (c.) utters any such counterfeit coin ; or 

' [d.) makes "* any counterfeit coin, resembling or ap- 
parently intended to resemble or pass for any copper 
coin of any foreign prince, state or country, not being 
current coin. , . v • 

And is liable to imprisonment as follows, that is to say : 

In cases [a.) and {h.) (i), to seven years. . 

In case {b.) (ii), to three years. 

In case (c.) for a first offence six months, for a second 
offence any term less than two years, and for any ' sub- 
sequent offence seven years. 

In case {d.) for a first offence one year, and for any 
subsequent offence seven years. 

IS. D. Art. 372 ((»),(<'.), 375 (/■), 373. ;: 

2 As to exportation, see Art. 547. 

^ R. S. C. c. 167, s. 19 ; 24 k 25 Vict. c. 99, s. 18. 

<R. S. C. c. 167, s. 20 ; 24 & 25 Vict. c. 99. s. 19. ' 

■' R. S. C. c. 167. s. 22. 

« R. S. C. c. 167, s. 21 ; 24 & 2-5 Vict. c. 99, s. 20. 

■ R. S. C. c. 167, s. 2? ; 24 k 25 Vict. c. 99, s. 22. 

« " Falsely makes." 

"An offence after two convictions is a felony. 



446 A DIGEST OF 



^ Article 559. 

when offence completed. 

- Every offence of making any counterfeit coin, or of 
buying, selling, receiving, paying, tendering, uttering or 
putting oflf, or of offering to buy, sell, receive, pay, utter 
or put off, any counterfeit coin, is deemed to be complete, 
although the coin so made or coanterfeited, or bought, 
sold, received, paid, tendered, uttered or put off, or offered 
to be bought, sold, received, paid, tendered, uttered or put 
off, was not in a fit state to be uttered, or the counterfeit- 
ing thereof was not finished or perfected. 

•S. D. Arts. 370(f), 372 (e.), 375 (ff.) ; 

2 R. S. C. 0. 167, 8. 27 ; 2t & 25 Viot. 0. 99, s. 30. 



THE CRIMINAL LAW. 447 



CHAPTER XLVII. 

ADVERTISING COUNTERFEIT MONEY. 

,' -) ' ■ ■ 

Article 560. 

definition. 

' In this chapter the expression " counterfeit token of 
value " means any spurious or counterfeit coin, paper 
money, inland revenue stamp, postage stamp, or other 
evidence of value, by whatever technical, trivial or decep- 
tive designation the same may be described. 

Article 561. 

advertising counterfeit money and other offences 
connected therewith. 

Every one is guilty of felony, and liable to five years' 
imprisonment w^ho 

" (a.) prints, writes, utters, publishes, sells, lends, gives 
away, circulates or distributes any letter, writing, cir- 
cular, paper, pamphlet, handbill or any written or printed 
matter advertising, or offering or purporting to advertise, 
or offer for sale, loan, exchange, gift or distribution, or to 
furnish, procure or distribute any counterfeit token of 
value, or what purports to be a counterfeit token of value, 
or giving or purporting to give, either directly or 
indirectly, information, where, how, of whom,[or by what 
means any counterfeit token of value, or what purports 
to be a counterfeit token of value, may^be procured or 
had; 

^ (6.) aids orjassists in any manner in any scheme or 

i51Viet. (D)c.40, s. 1. 
»51Vict. (D)c.40,s.2. 



448 A DIGEST OF 



device whatsoever, ort'eriug or purporting to offer lor 
sale, loan, gift, exchange or distribution, any counterfeit 
token of value ; 

' (c.) purchases, exchanges, accepts, takes possession of, 
or in any way uses, or offers to purchase, exchange, 
accept, take possession of, or in an^ way use, any such 
counterfeit token of value, or what purports so to be ; 

- (d.) in executing, operating, promoting, carrying on, 
or in the aiding, assisting or abetting in tiie promoting, 
operating, carrying on or executing of any scheme or 
device whatsoever to defraud, by the use or by means of 
any papers, writings, letters, circulars or written or 
printed matters concerning the offering for sale, loan, 
gift, dif^tribution or exchange of counterfeit tokens of 
value, uses any fictitious, false or assumed name or 
address, or name or address other than his own right, 
proper and lawful name ; 

^ (e.) in the executing, operating, promoting, carrying 
on, aiding, assisting or abetting in the execution, pro- 
moting or carrying on of any scheme or device, offering 
for sale, loan, gift or distribution, or purporting to offer 
for sale, loan, gift or distribution, or giving or purporting 
to give information, directly or indirectly, where, how, 
of whom or by what means any counterfeit token of 
value may be obtained or had, knowingly receives or 
takes from the mails, or from the post office, any letter or 
package addressed to any such fictitious, lalse or assumed 
name or address, or name other than his own right, 
proper or lawful name. • 

> 51 Vict. (D) e. 40, s. 2. v ^ . 

••'61Vict.(D)c.40, a.3. 



THE CRTMTNAL LAW. 449 



CHAPTER XLVIII. 

, • ^ MALICIOUS INJURIES TO PROPERTY. 

• ; '^Article 662. 

arson— setting fire to buildings, etc. — offences 
punishable by imprisonment for life. 

Every one is guilty of felouy, and liable to imprison- 
ment for life, who unlawfully and maliciously sets fire' to : 

' (a.) any church, chapel, meeting-house or other place 
of divine worship ; or 

' (b.) any dwelling house, any person being therein ; or 

" (c ) any house, stable, coach-house, out-house, ware- 
house, office, shop, mill, malt-house, hop-oast, barn, store- 
house, granary, hovel, shed or fold, or any farm build- 
ing, or any building or erection used in farming land, or 
in carrying on any trade or manufacture or any branch 
thereof, whether the same is then in the po8se.j^lon of the 

' It i.s not material whether any offence ogaiust R. S. C. c. 163 is oommitted from malice 
conceived agiiin.st the owner of the property in respect of which it is committed or other- 
wise (H. S. 0. c. KiS, s. CO ; 24 A 25 Vict. c. 97, s. 58 ; R. v. BmiUhaie, 38 U, C. Q. B. 564) ; 
nor whether tlie offender is or is not in possession of the property if tlie offence is com- 
mitted with intent to injure or defraud any person (R. S. C. c. ]68, s. 61 ; 24 & 25 Vict. o. 
97, s. 69.) 

'■^S. D. Art. 377(a.) 

•'[As to what constitutes " setting firci" it is not necessary that flame should be seen ; 
R.v. Stnllion,! Moo. 3i)S; but it is not sufficient that wo3d should bo scorched black : 
B, v. Uiusell, Car. & M. 541. It is sufficient if the wood has been at a red heat ; E. v. 
PoA-er, 9 C. ife P. 45. I suppose the question is whether the thing burnt has or has not 
begun to be decomposed by the action of fire.] With respect to the case of a man settinR 
firo to his own Ihouse, see Jl. v. Greenwood, 23 U. C. Q. B. 250; B. v. Cronin, 1 Ont. Dig. 

m;n. V. B)-vttM, 12 u. c. c. p. 161. 

m. S. C. o. 168, s. 2 ; 24 and 25 Vict, c 97, s. 1. 

^ R. S. C. c. 168, s. 3 ; 24 and 25 Vict. c. 97, s. 2. 

■^R. S. C. c. 164, 8. 4 ; 24 and 25 Vict. c. 97, s. 3. A building used by a carpenter, who is 
putting up a house near it, as a place of deposit for his tools and window frames that he 
had made, but in which no work is carried on by him, is not a building used in carrying 
on a trade ; R. v. Smith, 14 U. C. Q. B. 546. 

2 G 



460 A DIGEST OF 



offender, or in the possession of any other person, with 
the intent thereby to injure or defraud any person ; or 

' (d.) any station, engine-house, warehouse or other build- 
ing", belonging or appertaining to any railway, port, dock 
or harbor, or to any canal or other navigable water ; or 

" (e.) any building, other than such as are hereinbefore 
mentioned, belonging to Her Majesty or to any county, 
riding, division, city, town, village, parish or place, or 
belonging to any university or college, or hall of any 
university, or to any corporatio